<PAGE> 1
As filed with the Securities and Exchange Commission on May 17, 2000
Registration No. 333-63353
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
BRUSH ENGINEERED MATERIALS INC.
AS SUCCESSOR TO BRUSH WELLMAN INC.
(Exact Name of Registrant as Specified in Its Charter)
OHIO 34-1919973
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
-------------------
17876 St. Clair Avenue
Cleveland, Ohio 44110
(Address and Zip Code of Principal Executive Offices)
------------------
BRUSH ENGINEERED MATERIALS INC. DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
------------------
Michael C. Hasychak
Vice President, Secretary and Treasurer
Brush Engineered Materials Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
(Name and Address of Agent for Service)
(216) 486-4200
(Telephone Number, Including Area Code, of Agent for Service)
------------------------------
Copies to:
David P. Porter, Esq.
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
------------------------------
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended
(the "Securities Act"), Brush Engineered Materials Inc., an Ohio corporation, as
successor issuer to Brush Wellman Inc., an Ohio corporation, hereby adopts this
Registration Statement, as amended, for all purposes under the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"). See
"Description of the Transaction" herein.
This Post-Effective Amendment to the Registration Statement shall
become effective upon filing with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 464 under the Securities Act.
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DESCRIPTION OF THE TRANSACTION
This post-effective amendment is being filed in connection with a
corporate restructuring (the "Reorganization") of Brush Wellman Inc., an Ohio
corporation ("Brush"), into a holding company organizational structure, with
Brush becoming the wholly-owned subsidiary of Brush Engineered Materials Inc.,
an Ohio corporation ("Holding Company" or the "Registrant").
On May 2, 2000, the shareholders of Brush, at the 2000 Annual Meeting
of Shareholders, approved the Reorganization. The Reorganization was implemented
in accordance with Section 1701.78 of the Ohio General Corporation Law by the
merger (the "Merger") of Brush Merger Co., an Ohio corporation and newly formed
subsidiary of Holding Company ("Merger Co."), into Brush, the surviving
corporation. As a result of the Merger, Holding Company is the sole shareholder
of Brush. In the Merger, which was consummated on May 16, 2000, each share of
common stock of Brush, par value $1.00 per share (each, a "Brush Common Share"),
other than Brush Common Shares with respect to which dissenters' rights have
been exercised, was converted into one share of common stock of Holding Company,
without par value (each, a "Holding Company Common Share"). Accordingly, all of
the Brush Common Shares offered under the Brush Engineered Materials Inc.
Deferred Compensation Plan for Non-Employee Directors (the "Plan") will be
Holding Company Common Shares. In approving the Reorganization, the shareholders
of Brush approved the amendment of the Plan by Holding Company.
Pursuant to Rule 414(d) under the Securities Act, Holding Company, as
successor issuer to Brush, hereby expressly adopts, as of May 16, 2000, the
Registration Statement of Brush on Form S-8, as amended (Registration No.
333-63353 that is applicable to Brush Common Shares issuable under the Plan, as
the Registration Statement of Holding Company for all purposes under the
Securities Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
(A) Holding Company: The following documents, which have previously
been filed by Holding Company with the Commission (File No. 333-95917), are
incorporated by reference herein and shall be deemed to be part of this
Registration Statement:
(1) Registration Statement on Form S-4, filed on February 1,
2000 (Registration No. 333-95917);
(2) Amendment No. 1 to the Registration Statement on Form S-4,
filed on March 10, 2000 (Registration No. 333-95917);
(3) Amendment No. 2 to the Registration Statement on Form S-4,
filed on March 29, 2000 (Registration No. 333-95917);
(4) The description of Holding Company's Common Stock included
in the Registration Statement on Form S-4 (Registration No.
333-95917), including any amendment or report filed for the
purpose of updating such description;
(5) Form 8-A, filed on May 16, 2000; and
(6) Current Report on Form 8-K, filed on May 16, 2000.
<PAGE> 3
(B) Brush: The following documents, which have heretofore been filed
by Brush with the Commission pursuant to the Exchange Act (File No. 1-7006), are
incorporated by reference herein and shall be deemed to be a part hereof:
(1) Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(2) Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000;
(3) Current Report on Form 8-K, filed on May 9, 2000;
(4) Current Report on Form 8-K, filed on May 16, 2000; and
(5) Form 8-A/A, filed on May 16, 2000.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold shall be deemed to be
incorporated herein by reference and shall be deemed a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In general, a director of an Ohio corporation will not be found to have
violated his fiduciary duties unless there is proof by clear and convincing
evidence that the director (1) has not acted in good faith, (2) has not acted in
a manner he reasonably believes to be in or not opposed to the best interests of
the corporation or (3) has not acted with the care that an ordinarily prudent
person in a like position would use under similar circumstances. Monetary
damages for any act taken or omission made as a director are generally awarded
only if it is proved by clear and convincing evidence that the director
undertook such act or omission either with deliberate intent to cause injury to
the corporation or with reckless disregard for the best interests of the
corporation.
Under Ohio law, a corporation must indemnify its directors, officers,
employees and agents against expenses reasonably incurred in connection with the
successful defense (on the merits or otherwise) of an action, suit or
proceeding. A corporation may indemnify such persons in actions, suits and
proceedings (including certain derivative suits) if the individual has acted in
good faith and in a manner that he believes to be in or not opposed to the best
interests of the corporation. In the case of a criminal proceeding, the
individual must also have no reasonable cause to believe that his conduct was
unlawful.
Indemnification may be made only if ordered by a court or if authorized
in a specific case upon a determination that the applicable standard of conduct
has been met. Such a determination may be made by a majority of the
disinterested directors, by independent legal counsel or by the shareholders.
Under Ohio law, a corporation may pay the expenses of any indemnified
individual as they are incurred, in advance of the final disposition of the
matter, if the individual provides an undertaking to repay the amount if it is
ultimately determined that he is not entitled to be indemnified. Ohio law
generally requires all expenses, including attorney's fees, incurred by a
director
<PAGE> 4
in defending any action, suit or proceeding to be paid by the corporation as
they are incurred if the director agrees (i) to repay such amounts in the event
that it is proved by clear and convincing evidence that his action or omission
was undertaken with deliberate intent to cause injury to the corporation or with
reckless disregard for the best interests of the corporation and (ii) to
reasonably cooperate with the corporation concerning the action, suit or
proceeding.
The code of regulations of Brush Engineered Materials Inc. provides for
indemnification that is coextensive with that permitted under Ohio law. In
addition, Brush Engineered Materials Inc. may enter into agreements that
indemnify its directors and certain of its officers to the maximum extent
permitted by applicable law. The indemnification so granted is not limited to
the indemnification specifically authorized by the Ohio General Corporation Law.
Each agreement represents a contractual obligation of Brush Engineered Materials
Inc. that cannot be altered unilaterally.
It is anticipated that Brush Engineered Materials Inc. will obtain a
directors' and officers' liability insurance policy, pursuant to which the
directors and officers of Brush Engineered Materials will be insured against
certain liabilities, including certain liabilities under the Securities Act and
the Exchange Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) Brush Engineered Materials Inc. (formerly Brush Wellman Inc.)
Deferred Compensation Plan for Non-Employee Directors (filed as
Exhibit I to the Proxy Statement, dated March 6, 1992, filed by
Brush Wellman Inc., Commission File No. 1-7006, incorporated
herein by reference.
4(b) Amendment, dated May 16, 2000, to the Brush Engineered Materials
Inc. (formerly Brush Wellman Inc.) Deferred Compensation Plan for
Non-Employee Directors.
4(c) Amended and Restated Articles of Incorporation of Brush
Engineered Materials Inc. (filed as Annex B to the Registration
Statement on Form S-4 filed by Brush Engineered Materials Inc. on
February 1, 2000 (Registration No. 333-95917), incorporated
herein by reference.
4(d) Amended and Restated Code of Regulations of Brush Engineered
Materials Inc. (filed as Exhibit 4(b) to the Current Report on
Form 8-K filed by Brush Wellman Inc. on May 16, 2000),
incorporated herein by reference.
4(e) Rights Agreement, dated as of May 10, 2000, by and between Brush
Engineered Materials Inc. and National City Bank, N.A. as Rights
Agent (filed as Exhibit 4(a) to the Current Report on Form 8-K
filed by Brush Engineered Materials Inc. on May 16, 2000),
incorporated herein by reference.
23 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney for each officer and director of Brush
Engineered Material Inc. signing this Registration Statement
through an attorney-in-fact.
<PAGE> 5
ITEM 9. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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.
(B) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide
offering thereof.
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling
<PAGE> 6
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Brush Engineered Materials Inc. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing this Registration
Statement 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 Cleveland, State of Ohio, on this 16th day of May, 2000.
BRUSH ENGINEERED MATERIALS INC.
/s/ Michael C. Hasychak
---------------------------------------
Michael C. Hasychak
Vice President, Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of May 16, 2000.
/s/ Gordon D. Harnett* /s/ Joseph P. Keithley*
- -------------------------------------- -----------------------
Gordon D. Harnett Joseph P. Keithley
Chairman of the Board, President, Director
Chief Executive Officer, and Director
(principal executive officer)
/s/ John D. Grampa* /s/ William P. Madar*
- ------------------------------------- ---------------------
John D. Grampa William P. Madar
Vice President - Finance and Chief Director
Financial Officer (principal
financial and accounting officer)
/s/ Albert C. Bersticker* /s/ William R. Robertson*
- ------------------------------------- -------------------------
Albert C. Bersticker William R. Robertson
Director Director
/s/ Charles F. Brush, III* /s/ John Sherwin, Jr.*
- ------------------------------------- ----------------------
Charles F. Brush, III John Sherwin, Jr.
Director Director
/s/ David L. Burner*
- -------------------------------------
David L. Burner
Director
/s/ David H. Hoag*
- -------------------------------------
David H. Hoag
Director
<PAGE> 7
* The undersigned by signing his name hereto, does sign and execute
this Registration Statement on Form S-8 pursuant to a Power of Attorney executed
on behalf of the above-indicated officers and directors of Brush Engineered
Materials Inc. and filed herewith as Exhibit 24 on behalf of Brush Engineered
Materials Inc. and each such person.
By: /s/ Michael C. Hasychak
-------------------------------------
Michael C. Hasychak, Attorney-in-fact
May 16, 2000
<PAGE> 8
EXHIBIT INDEX
4(a) Brush Engineered Materials Inc. (formerly Brush Wellman Inc.)
Deferred Compensation Plan for Non-Employee Directors (filed as
Exhibit I to the Proxy Statement, dated March 6, 1992, filed by
Brush Wellman Inc., Commission File No. 1-7006, incorporated
herein by reference.
4(b) Amendment, dated May 16, 2000, to the Brush Engineered Materials
Inc. (formerly Brush Wellman Inc.) Deferred Compensation Plan for
Non-Employee Directors.
4(c) Amended and Restated Articles of Incorporation of Brush
Engineered Materials Inc. (filed as Annex B to the Registration
Statement on Form S-4 filed by Brush Engineered Materials Inc. on
February 1, 2000 (Registration No. 333-95917), incorporated
herein by reference.
4(d) Amended and Restated Code of Regulations of Brush Engineered
Materials Inc. (filed as Exhibit 4(b) to the Current Report on
Form 8-K filed by Brush Wellman Inc. on May 16, 2000),
incorporated herein by reference.
4(e) Rights Agreement, dated as of May 10, 2000, by and between Brush
Engineered Materials Inc. and National City Bank, N.A. as Rights
Agent (filed as Exhibit 4(a) to the Current Report on Form 8-K
filed by Brush Engineered Materials Inc. on May 16, 2000),
incorporated herein by reference.
23 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney for each officer and director of Brush
Engineered Material Inc. signing this Registration Statement
through an attorney-in-fact.
<PAGE> 1
Exhibit 4(b)
2000 REORGANIZATION AMENDMENT
TO THE DEFERRED COMPENSATION
PLAN FOR NONEMPLOYEE DIRECTORS
The title of the Deferred Compensation Plan for Nonemployee Directors (the
"Plan") shall be amended to read, in its entirety, as follows:
BRUSH ENGINEERED MATERIALS INC.
DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
(AS AMENDED AS OF MAY 16, 2000)
The reference in Article I of the Plan to "Brush Wellman Inc." shall be
amended to read "Brush Engineered Materials Inc."
Section 2.3 of the Plan shall be amended to read, in its entirety, as
follows:
2.3. "Common Shares" shall mean the Common Shares, without par
value, of the Company.
Section 2.4 of the Plan shall be amended to read, in its
entirety, as follows:
2.4. "Company" shall mean Brush Engineered Materials Inc.
Section 2.9 of the Plan shall be amended to read, in its
entirety, as follows:
2.9. "Plan" shall mean the Brush Engineered Materials Inc.
Deferred Compensation Plan for Nonemployee Directors, as amended from
time to time.
Section 5.5(a) of the Plan shall be amended to read, in its
entirety, as follows:
(a) The Board of Directors of the Company at any time shall
fail to include a majority of directors who are either "Original
Directors" or "Approved Directors". An Original Director is a director
who was serving on the Board of Directors of Brush Wellman Inc. on
January 1, 1992. An Approved Director is a director who, after such
date, is elected to the Board of Directors of Brush Wellman Inc. or
the Board of Directors of the Company, or is nominated for election by
the shareholders, by a vote of at least two-thirds of the Original
Directors and the previously elected Approved Directors, if any;
<PAGE> 1
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No. 1 to the
Registration Statement (Form S-8 No. 333-63353) pertaining to the Brush
Engineered Materials Inc. Deferred Compensation Plan for Non-Employee Directors
(successor to the Brush Wellman Inc. Deferred Compensation Plan for Non-Employee
Directors) of our report dated January 24, 2000, with respect to the
consolidated financial statements and schedule of Brush Engineered Materials
Inc. (successor to Brush Wellman Inc.) included in its Annual Report (Form
10-K) for the year ended December 31, 1999, filed with the Securities and
Exchange Commission.
/s/Ernst & Young LLP
Cleveland, Ohio
May 16, 2000
<PAGE> 1
EXHIBIT 24
DIRECTOR AND OFFICER OF
BRUSH WELLMAN INC.
AND BRUSH ENGINEERED MATERIALS INC.
AMENDED REGISTRATION STATEMENTS ON FORM S-8
POWER OF ATTORNEY
The undersigned director and/or officer of Brush Wellman Inc., an Ohio
corporation (the "Company"), hereby constitutes and appoints Gordon D. Harnett,
John D. Grampa and Michael C. Hasychak, or any of them, with full power of
substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Act of 1933 one or more amendments to the Company's Registration
Statement(s) on Form S-8 relating to the registration for sale of the Company's
common stock, par value $1.00 per share (and following the merger contemplated
by the Company's proxy statement for the 2000 Annual Meeting, the common stock,
no par value, of Brush Engineered Materials Inc.), and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to be
filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and any
such substitute.
EXECUTED as of May 2, 2000.
/s/ Gordon D. Harnett
-------------------------------
Gordon D. Harnett
Chairman of the Board, President and Chief Executive Officer*
* Relates to Mr. Harnett's capacity both (i) as a director and officer of
Brush Wellman Inc. prior to the merger of Brush Merger Co. into Brush
Wellman Inc. and (ii) as a director and officer of Brush Engineered
Materials Inc. thereafter.
<PAGE> 2
OFFICER OF
BRUSH WELLMAN INC.
AND BRUSH ENGINEERED MATERIALS INC.
AMENDED REGISTRATION STATEMENTS ON FORM S-8
POWER OF ATTORNEY
The undersigned director and/or officer of Brush Wellman Inc., an Ohio
corporation (the "Company"), hereby constitutes and appoints Gordon D. Harnett,
John D. Grampa and Michael C. Hasychak, or any of them, with full power of
substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Act of 1933 one or more amendments to the Company's Registration
Statement(s) on Form S-8 relating to the registration for sale of the Company's
common stock, par value $1.00 per share (and following the merger contemplated
by the Company's proxy statement for the 2000 Annual Meeting, the common stock,
no par value, of Brush Engineered Materials Inc.), and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to be
filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and any
such substitute.
EXECUTED as of May 2, 2000.
/s/ John D. Grampa
----------------------------------
John D. Grampa
Vice President - Finance and Chief Financial Officer*
* Relates to Mr. Grampa's capacity both (i) as an officer of Brush Wellman
Inc. prior to the merger of Brush Merger Co. into Brush Wellman Inc. and
(ii) as an officer of Brush Engineered Materials Inc. thereafter.
<PAGE> 3
DIRECTOR OF
BRUSH WELLMAN INC.
AND BRUSH ENGINEERED MATERIALS INC.
AMENDED REGISTRATION STATEMENTS ON FORM S-8
POWER OF ATTORNEY
The undersigned director and/or officer of Brush Wellman Inc., an Ohio
corporation (the "Company"), hereby constitutes and appoints Gordon D. Harnett,
John D. Grampa and Michael C. Hasychak, or any of them, with full power of
substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Act of 1933 one or more amendments to the Company's Registration
Statement(s) on Form S-8 relating to the registration for sale of the Company's
common stock, par value $1.00 per share (and following the merger contemplated
by the Company's proxy statement for the 2000 Annual Meeting, the common stock,
no par value, of Brush Engineered Materials Inc.), and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to be
filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and any
such substitute.
EXECUTED as of May 2, 2000.
[Signatures on following page.]
<PAGE> 4
/s/ William P. Madar /s/ David L. Burner
- --------------------- -------------------
William P. Madar David L. Burner
Director* Director*
/s/ David H. Hoag /s/ Joseph P. Keithley
- ------------------ ----------------------
David H. Hoag Joseph P. Keithley
Director* Director*
/s/ Albert C. Bersticker /s/ William R. Robertson
- ------------------------- ------------------------
Albert C. Bersticker William R. Robertson
Director* Director*
/s/ Dr. Charles F. Brush, III /s/ John Sherwin, Jr.
- ------------------------------ ---------------------
Dr. Charles F. Brush, III John Sherwin, Jr.
Director* Director*
* Relates to the capacity of each above signed director both (i) as a
director of Brush Wellman Inc. prior to the merger of Brush Merger Co. into
Brush Wellman Inc. and (ii) as a director of Brush Engineered Materials
Inc. thereafter.
