1
EXHIBIT 99.(c)(8)
THIRD AMENDMENT
TO
THE AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO THE AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT (this "Amendment") is made and entered into as of the 31st
day of August, 1998 by and among Berg Electronics Corp. ("Berg"); Berg
Electronics Group, Inc.; Harbor Electronics, Inc.; Berg Employment Company;
Specialty Connector Company; Socket Express, Inc.; Berg Technology, Inc.; Berg
Holdings U.S., Inc.; Berg Electronics Korea Ltd.; Berg Electronics B.V.; Berg
Electronics Manufacturing B.V.; Berg Electronics Distributor B.V.; Berg
Connector Systems S.L.; Berg Connector Systems GmbH; Bergtronics, O.y.; Berg
Electronics, s.r.l.; Berg Electronics Canada, Inc.; Berg Electronics Hong Kong
Limited; Berg Electronics Singapore PTE Ltd.; Berg Electronics S.A. (France);
CBOS Electronics, A.B.; Berg Electronics, S.A. (Switzerland); Connector Systems
Limited; TVS Berg Ltd.; Berg Electronics Taiwan Ltd.; Berg Electronics Japan
K.K.; Berg Electronics Engineering, K.K.; Berg Electronics China Ltd.; Berg
Electronics Nantong, Ltd.; Connector Systems (U.S.), Inc.; and Connector
Systems Technology, N.V. (collectively with Berg, "Employer"), and W. Thomas
McGhee ("Employee").
WHEREAS, Employer and Employee have entered into that certain
Amended and Restated Executive Employment Agreement dated as of February 1,
1996, as amended by that certain First Amendment to the Amended and Restated
Executive Employment Agreement dated as of August 5, 1996, as further amended
by that certain Second Amended and Restated Executive Employment Agreement
dated as of November 1, 1997 (as so amended, the "Agreement"); and
WHEREAS, Employer and Employee desire to further amend the
Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises, Employer and
Employee agree as follows:
2
1. Section 3(c) of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Without Cause. In the event that (i) Employer terminates
the employment of Employee under this Agreement without Cause or (ii) upon or
following a Change in Control of Berg, Employee elects to retire from or
terminate his employment under this Agreement within six months following such
Change in Control, such retirement or termination shall be deemed for all
purposes of this Agreement to constitute a termination of Employee without
Cause, and Employee shall be entitled to receive the compensation and other
benefits set forth in Section 4(c) below. As used herein, "Change in Control"
shall mean any of the following: (i) any "person", within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than any employee or subsidiary of Berg or any employee
benefit plan (or related trust) becomes the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of securities of Berg
representing 50% or more of the combined voting power of Berg's then
outstanding voting securities; (ii) the merger or consolidation of Berg with
another person and, as a result of such merger or consolidation, less than 70%
of the outstanding voting securities of the surviving or resulting person or
parent thereof shall then be owned in the aggregate by the stockholders of Berg
immediately prior to such merger or consolidation; (iii) at any time after the
date hereof, the individuals who constituted the Board of Directors on such
date (including, for this purpose, any new director whose election or
nomination for election by Berg's stockholders was approved by a vote of at
least 75% of the directors in office on such date) cease for any reason to
constitute at least a majority of the Board of Directors; (iv) the consummation
of a sale of substantially all of the assets of Berg; or (v) Berg's adoption of
a plan of liquidation. A Change in Control shall also include any series of
transactions occurring during the term of this Agreement which result in any of
the changes described above."
2. Section 4(c) of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Termination Without Cause. If the employment of Employee
under this Agreement is terminated pursuant to prong (i) of the first sentence
of Section 3(c) above, Employee shall be entitled to continue to receive from
Employer (i) Employee's then current salary hereunder, which shall be not less
than the amount specified in the second sentence of Section 2(a) above for the
remainder of the Employment Period or for one (1) year, whichever is longer,
such amount to continue
2
3
to be paid in accordance with the payroll practices of Employer throughout the
Employment Period, (ii) the benefits to which Employee would otherwise be
entitled pursuant to Sections 2(c) and (d) above and (iii) reimbursement for
expenses incurred by Employee in connection with the ownership and maintenance
of an automobile as contemplated by Section 5 below. If Employee retires or
terminates his employment pursuant to prong (ii) of the first sentence of
Section 3(c) above, Employee shall be entitled to receive from Employer (i) the
product of (A) Employee's then current monthly salary hereunder times (B) the
number of months remaining in the Employment Period, in a cash lump sum, (ii)
the benefits to which Employee would otherwise be entitled pursuant to Sections
2(c) and (d) above and (iii) reimbursement for expenses incurred by Employee in
connection with the ownership and maintenance of an automobile in an amount
equal to the product of (A) $1,050 times (B) the number of months remaining in
the Employment Period, in a cash lump sum. Notwithstanding the foregoing, if
Employee's employment is terminated under either prong of the first sentence of
Section 3(c) hereof upon or immediately following a Change in Control, in lieu
of the benefits (other than the benefits to which he may be entitled pursuant to
Section 2(d) hereof) and payments set forth above, Employee shall receive a lump
sum cash payment equal to $676,465. For purposes of the foregoing, references
to the Employment Period shall mean the stated unexpired term of this Agreement
set forth in Section 1(a) above without giving effect to the termination of
Employee hereunder."
3. Non-Compete. (a) Employee, in acknowledgment and
recognition of the highly competitive nature of the business of the Company and
its affiliates, and in consideration of the benefits under this Agreement and
any consideration such Employee may receive in connection with the transactions
contemplated by the Agreement and Plan of Merger by and among Framatome
Connectors International S.A., Bravo Acquisition Co. and Berg dated August 27,
1998, during the term of Employee's employment and for two (2) years thereafter
(the "Non-Compete Term"), will not, directly or indirectly, engage in the
connector business, whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as a holder of less than 5%
of the outstanding capital stock of a publicly traded corporation), consultant,
advisor, agent, sales representative or other participant.
(b) During the Non-Compete Term, Employee will not directly or
indirectly induce any current or former employee of the Company or any of its
affiliates to engage in any activity in which such Employee is prohibited from
engaging by paragraph (a) hereof or to terminate his employment relationship,
as applicable, with the Company or any of its affiliates.
3
4
(c) Employee acknowledges and agrees that the Company's remedies
at law for a breach or threatened breach of any of the provisions of paragraphs
(a) or (b) would be inadequate and, in recognition of this fact, Employee
agrees that, in the event of such a breach or threatened breach, in addition to
any remedies at law, the Company, without posting any bond, shall be entitled
to obtain equitable relief in the form of specific performance, temporary
restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available.
(d) Employee expressly acknowledges that the scope of the
foregoing covenants is reasonable and necessary in order to protect the
interests of the Company and its affiliates. Notwithstanding the foregoing, if
a final judicial determination is made by a court of competent jurisdiction or
an arbitrator that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against Employee, the provisions
of this Agreement shall not be rendered void but shall be deemed amended to
apply as to such maximum time and territory and to such maximum extent as such
court or arbitrator may determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction or arbitrator finds that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained
herein.
(e) Notwithstanding anything to the contrary contained in this
Section 3, Employee shall be entitled to engage in any business which derives
not more than 15% of its aggregate revenues from its connector business.
4. Except as expressly amended by this Amendment, the
Agreement shall continue in full force and effect in the form in which it
existed immediately prior to the execution and delivery of this Amendment.
5. The Agreement, as amended by this Amendment, contains the
entire agreement of the parties hereto with respect to the employment of
Employee by the Company.
6. This Amendment may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
4
5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
BERG ELECTRONICS CORP.
BERG ELECTRONICS GROUP, INC.
HARBOR ELECTRONICS, INC.
BERG EMPLOYMENT COMPANY
SPECIALTY CONNECTOR COMPANY
SOCKET EXPRESS, INC.
BERG TECHNOLOGY, INC.
BERG HOLDINGS U.S., INC.
BERG ELECTRONICS KOREA LTD.
BERG ELECTRONICS B.V.
BERG ELECTRONICS MANUFACTURING B.V.
BERG ELECTRONICS DISTRIBUTOR B.V.
BERG CONNECTOR SYSTEMS S.L.
BERG CONNECTOR SYSTEMS GMBH
BERGTRONICS, O.Y.
BERG ELECTRONICS, S.R.L.
BERG ELECTRONICS CANADA, INC.
BERG ELECTRONICS HONG KONG LIMITED
BERG ELECTRONICS SINGAPORE PTE LTD.
BERG ELECTRONICS S.A. (FRANCE)
CBOS ELECTRONICS, A.B.
BERG ELECTRONICS, S.A. (SWITZERLAND)
CONNECTOR SYSTEMS LIMITED
TVS BERG LTD.
BERG ELECTRONICS TAIWAN LTD.
BERG ELECTRONICS JAPAN K.K.
BERG ELECTRONICS ENGINEERING, K.K.
BERG ELECTRONICS CHINA LTD.
BERG ELECTRONICS NANTONG, LTD.
CONNECTOR SYSTEMS (U.S.), INC.
CONNECTOR SYSTEMS TECHNOLOGY, N.V.
By: /s/ DAVID M. SINDELAR
-------------------------------------------------
David M. Sindelar, Senior Vice President,
on behalf of Employer
/s/ W. THOMAS MCGHEE
---------------------------------------------
W. Thomas McGhee
5