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As filed with the Securities and Exchange Commission on September 14, 1998
Registration No. ________________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BRUSH WELLMAN INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C>
OHIO 34-0119320
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
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17876 St. Clair Avenue, Cleveland, Ohio 44110
(Address of Principal Executive Offices Including Zip Code)
BRUSH WELLMAN INC. 1997 STOCK INCENTIVE PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
Michael C. Hasychak
Secretary and Treasurer
Brush Wellman 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)
CALCULATION OF REGISTRATION FEE
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- -------------------------- ------------------------ ------------------------ ------------------------ ----------------------
Title of Amount to be Proposed Maxi- Proposed Maxi- Amount of
Securities to Registered (1) mum Offering mum Aggregate Registration
be Registered Price Per Share (2) Offering Price (2) Fee
- -------------------------- ------------------------ ------------------------ ------------------------ ----------------------
<S> <C> <C> <C> <C>
Common Shares, par value
of $1 per share 50,000 $ 14.75 $ 737,500 $ 217.56
- -------------------------- ------------------------ ------------------------ ------------------------ ----------------------
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(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also covers such additional Common
Shares of the par value of $1 per share ("Common Shares"), as may
become issuable pursuant to the anti-dilution provisions of the Brush
Wellman Inc. 1997 Stock Incentive Plan for Non-Employee Directors (the
"Plan").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and
Regulations under the Securities Act, on the basis of the average of
the high and low sale prices of such securities on the New York Stock
Exchange on September 10, 1998, within five business days prior to
filing.
Exhibit Index Appears on Page 5
Page 1 of 5 Pages
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Part II
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents previously filed by Brush Wellman Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference: the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997; the Registrant's Quarterly Reports
on Form 10-Q for the quarters ended April 3, 1998 and July 3, 1998; the
description of Common Stock contained in the Registrant's Form 10 Registration
Statement, File No. 1-7006, and all amendments and reports filed for the purpose
of updating that description, and the Current Report on Form 8-K dated July 27,
1998.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 (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 to be part hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article IV of the Registrant's Regulations, as amended April 27, 1993
(filed as Exhibit (3b) to Registrant's Form 10-K Annual Report for the year
ended December 31, 1994), is incorporated herein by reference.
Reference is made to Section 1701.13(E) of the Ohio Revised Code
relating to the indemnification of directors and officers of an Ohio
corporation.
The Registrant maintains insurance on behalf of any person who is or
was a director or officer against any loss arising from any claim asserted
against him in any such capacity, subject to certain exclusions. The Registrant
also maintains fiduciary liability insurance on behalf of any person involved in
the management or administration of any employee benefit plan maintained by the
Registrant.
Pursuant to the approval of the Board of Directors on February 28, 1989
and of its shareholders on April 25, 1989, the Registrant has entered into, or
will enter into, Indemnification Agreements with (a) each Director of the
Registrant and (b) such officers, employees and agents of the Registrant as may
be designated by the Board of Directors from time to time, as discussed in pages
16 through 18 of the Registrant's Proxy Statement dated March 10, 1989 for its
annual meeting held on April 25, 1989 (which discussion is incorporated herein
by reference).
Item 8. Exhibits
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4(a) Second Amended and Restated Articles of Incorporation of the
Registrant (filed as Exhibit 3(a) to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997 and
incorporated herein by reference).
4(b) Regulations of the Registrant (filed as Exhibit 3(b) to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994 and incorporated herein by reference).
4(c) Rights Agreement between the Registrant and National City
Bank, N.A., dated January 27, 1998 (filed as Exhibit 4(d) to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 and incorporated herein by reference).
4(d) Brush Wellman Inc. 1997 Stock Incentive Plan for Non-Employee
Directors (filed as Exhibit B to the Registrant's Proxy
Statement dated March 16, 1998, Commission File No. 1-7006,
and incorporated herein by reference).
5 Opinion of Counsel.
23(a) Consent of Independent Auditors.
Page 2 of 5 Pages
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23(b) Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.
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 paragraph
(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 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.
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 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 the initial bona fide offering
thereof.
C. The undersigned Registrant hereby undertakes that, 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 Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on September 14, 1998.
BRUSH WELLMAN INC.
By: /s/ Michael C. Hasychak
--------------------------------------------
Michael C. Hasychak, Secretary and Treasurer
Page 3 of 5 Pages
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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* Chairman of the Board, President, Chief September 14, 1998
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Gordon D. Harnett Executive Officer and Director
(principal executive officer)
* Vice President and Chief Financial September 14, 1998
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Carl Cramer Officer (principal financial and
accounting officer)
* Director September 14, 1998
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Albert C. Bersticker
* Director September 14, 1998
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Charles F. Brush, III
* Director September 14, 1998
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David L. Burner
* Director September 14, 1998
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Joseph P. Keithley
Director September 14, 1998
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William P. Madar
Director September 14, 1998
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Robert M. McInnes
* Director September 14, 1998
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William R. Robertson
* Director September 14, 1998
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John Sherwin, Jr.
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* Michael C. Hasychak, the undersigned attorney-in-fact, by signing his
name hereto, does hereby sign and execute this Registration Statement on behalf
of the above indicated officers and directors thereof (constituting a majority
of the directors) pursuant to a power of attorney filed with the Securities and
Exchange Commission.
September 14, 1998 By: /s/ Michael C. Hasychak
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Michael C. Hasychak, Attorney-in-Fact
Page 4 of 5 Pages
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EXHIBIT INDEX
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4(a) Second Amended and Restated Articles of Incorporation of the
Registrant (filed as Exhibit 3(a) to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997 and
incorporated herein by reference).
4(b) Regulations of the Registrant (filed as Exhibit 3(b) to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994 and incorporated herein by reference).
4(c) Rights Agreement between the Registrant and National City
Bank, N.A., dated January 27, 1998 (filed as Exhibit 4(d) to
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997 and incorporated herein by
reference).
4(d) Brush Wellman Inc. 1997 Stock Incentive Plan for Non-Employee
Directors (filed as Exhibit B to the Registrant's Proxy
Statement dated March 16, 1998, Commission File No. 1-7006,
and incorporated herein by reference).
5 Opinion of Counsel.
23(a) Consent of Independent Auditors.
23(b) Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.
Page 5 of 5 Pages
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Exhibit 5
[BRUSH WELLMAN INC. LETTERHEAD]
September 11, 1998
Securities and Exchange Commission
Judiciary Plaza
450 5th Street, N.W.
Washington, D.C. 20549
Re: 1997 Stock Incentive Plan for Non-Employee Directors
----------------------------------------------------
Ladies and Gentlemen:
I have acted as counsel for Brush Wellman Inc., an Ohio corporation
(the "Company"), in connection with the Brush Wellman Inc. 1997 Stock Incentive
Plan for Non-Employee Directors (the "Plan"). I have examined such documents,
records and matters of law as we have deemed necessary for purposes of this
opinion, and based thereon, I am of the opinion that the shares of Common Stock,
of the par value of $1 per share, of the Company (the "Common Shares"), that may
be issued or transferred and sold pursuant to the Plan will be, when issued or
transferred and sold in accordance with the Plan and the Agreements, duly
authorized, validly issued, fully paid and nonassessable, provided that the
consideration received by the Company is at least equal to the par value of such
shares.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 filed by the Registrant to effect
registration of the 50,000 Common Shares to be issued and sold pursuant to the
Plan under the Securities Act of 1933.
Very truly yours,
/s/ John J. Pallam
John J. Pallam
Vice President and General Counsel
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Brush Wellman Inc. Deferred Compensation Plan for
Nonemployee Directors (As Amended and Restated as of December 2, 1997) of our
report dated January 27, 1998, with respect to the consolidated financial
statements of Brush Wellman Inc. incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1997 and our report dated March 25,
1998, with respect to the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
September 10, 1998
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Exhibit 24
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Brush Wellman Inc., an Ohio corporation ("the Company"), hereby
constitutes and appoints Gordon D. Harnett, Carl Cramer, Michael C. Hasychak and
Louis Rorimer, and each of them, as true and lawful attorneys or
attorneys-in-fact for the undersigned, with full power of substitution and
revocation, for him and in his name, place and stead, to sign on his behalf as
an officer or director of the Company a Registration Statement or Registration
Statements on Form S-8 pursuant to the Securities Act of 1933 concerning certain
Common Shares of the Company to be offered in connection with the Company's 1997
Stock Incentive Plan for Non-Employee Directors, and to sign any and all
amendments or post-effective amendments to such Registration Statement(s), and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission or any state regulatory
authority, granting unto said attorneys or attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 8th day of September, 1998.
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/s/ Gordon D. Harnett /s/ Joseph P. Keithley
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Gordon D. Harnett Joseph P. Keithley
Chairman of the Board, President, Chief Executive Director
Officer and Director (principal executive officer)
/s/ Carl Cramer
- ----------------------------------------------------------- ---------------------------------------------------
Carl Cramer William P. Madar
Vice President and Chief Financial Officer Director
(principal financial and accounting officer)
/s/ Albert C. Bersticker
- ----------------------------------------------------------- ---------------------------------------------------
Albert C. Bersticker Robert M. McInnes
Director Director
/s/ Charles F. Brush, III /s/ William R. Robertson
- ----------------------------------------------------------- ---------------------------------------------------
Charles F. Brush, III William R. Robertson
Director Director
/s/ David L. Burner /s/ John Sherwin, Jr.
- ----------------------------------------------------------- ---------------------------------------------------
David L. Burner John Sherwin, Jr.
Director Director
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