<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
BRUSH WELLMAN INC.
(Exact name of registrant as specified in its charter)
OHIO 34-0119320
(State of Incorporation) (I.R.S. Employer Identification No.)
BRUSH WELLMAN INC.
17876 ST. CLAIR AVENUE
CLEVELAND, OHIO 44110
(Address, including zip code, of
registrant's principal executive offices)
BRUSH WELLMAN INC.
KEY EMPLOYEE SHARE OPTION PLAN
(Full title of the plan)
MICHAEL C. HASYCHAK
SECRETARY
BRUSH WELLMAN INC.
17876 ST. CLAIR AVENUE
CLEVELAND, OHIO 44110
(216) 486-4200
(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Title of securities Proposed Maximum
to be registered Offering Price Amount of registration fee
- --------------------------------------------------------------------------------
<S> <C> <C>
Options to Purchase
Designated Property $3,000,000 $885
<FN>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminable amount of interests to
be offered or sold pursuant to the employee benefit plan discussed herein.
</TABLE>
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents filed by Brush Wellman Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference as of their respective dates of filing:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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 which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
-------------------------
Articles I, II, III, IV and VII of the Brush Wellman Inc. Key
Employee Share Option Plan (filed as Exhibit 4.1 hereto) describing the
securities offered hereunder are hereby incorporated by reference.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article IV of the Registrant's Code of Regulations, as amended
April 27, 1993 (filed as Exhibit (3b) to Registrant's Annual Report on Form 10-K
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.
<PAGE> 3
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 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
---------
See Index to Exhibits following signature pages.
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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 this 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 the undertakings set forth in paragraphs (i) and (ii) above
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 Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
<PAGE> 4
(b) The undersigned registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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.
<PAGE> 5
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 this 5th day of May,
1998.
BRUSH WELLMAN INC.
By /s/ Gordon D. Harnett
---------------------------
Gordon D. Harnett
President and Chief
Executive Officer
POWER OF ATTORNEY
-----------------
Each person whose signature appears below hereby appoints Michael
C. Hasychak as the undersigned's lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, to execute in the undersigned's name,
place and stead, any amendments to the foregoing Registration Statement and to
file the same with the Securities and Exchange Commission. Such attorney shall
have full power and authority to do and perform, in the name and on behalf of
each of the undersigned, every act whatsoever necessary or desirable to be done,
as fully to all intents and purposes as the undersigned might or could do in
person. The undersigned each hereby ratifies and approves the acts of such
attorney.
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:
- -------------------------------------------------------------------------------
Name Title Date
- ---- ----- ----
- -------------------------------------------------------------------------------
By /s/ Gordon D. Harnett President, Chairman of May 5, 1998
--------------------------- the Board and Chief
Gordon D. Harnett Executive Officer
(principal executive
officer)
S-1
<PAGE> 6
Vice President Finance May 5, 1998
/s/ Carl Cramer and Chief Financial
--------------------------- Officer (principal
Carl Cramer financial and accounting
officer)
/s/ Joseph P. Keithley Director May 5, 1998
- ----------------------------
Joseph P. Keithley
/s/ William R. Robertson Director May 5, 1998
- ----------------------------
William R. Robertson
/s/ John Sherwin, Jr. Director May 5, 1998
- ----------------------------
John Sherwin, Jr.
/s/ William P. Madar Director May 5, 1998
- ----------------------------
William P. Madar
/s/ Robert M. McInnes Director May 5, 1998
- ----------------------------
Robert M. McInnes
/s/ Albert C. Bersticker Director May 5, 1998
- ----------------------------
Albert C. Bersticker
/s/ Dr. Charles F. Brush, III Director May 5, 1998
- ----------------------------
Dr. Charles F. Brush, III
/s/ David L. Burner Director May 5, 1998
- ----------------------------
David L. Burner
S-2
<PAGE> 7
INDEX TO EXHIBITS
-----------------
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES:
4.1 Brush Wellman Inc. Key Employee Share Option
Plan
4.2 Brush Wellman Inc. Key Employee Share Option
Plan Option Agreement
(5) OPINION RE LEGALITY
5.1 Opinion of Thompson Hine & Flory LLP
(23) CONSENTS OF EXPERTS AND COUNSEL:
23.1 Consent of Ernst & Young LLP
23.2 Consent of Thompson Hine & Flory LLP
[contained in their opinion filed as Exhibit
5.1]
(24) POWERS OF ATTORNEY
24.1 A Power of Attorney granted by each director
executing this registration statement is set
forth on the signature page to this
registration statement
-------------------------------------
S-3
<PAGE> 1
Exhibit 4.1
-----------
BRUSH WELLMAN INC.
KEY EMPLOYEE SHARE OPTION PLAN
<PAGE> 2
BRUSH WELLMAN INC.
KEY EMPLOYEE SHARE OPTION PLAN
TABLE OF CONTENTS
Article Page
Preamble 1
I Definitions 1
II Award of Options 3
III Exercise of Options 5
IV Amendment or Termination of Plan 8
V Administration 9
VI Trust Provisions 10
VII Miscellaneous 10
<PAGE> 1
Exhibit 4.2
-----------
BRUSH WELLMAN INC.
KEY EMPLOYEE SHARE OPTION PLAN
OPTION AGREEMENT
1. Pursuant to the Brush Wellman Inc. Key Employee Share Option Plan,
as amended from time to time (the "Plan"), the terms of which are incorporated
by reference into this Agreement, an Option is hereby granted to the Participant
to purchase from Brush Wellman Inc. (the "Corporation") the Designated Property
identified below at the Exercise Price set forth below:
NAME OF PARTICIPANT: [PARTICIPANT NAME]
KESOP OPTION NUMBER: [ADMINISTRATIVE IDENTIFYING NO.]
DESIGNATED PROPERTY: [NAME OF MUTUAL FUND]
NUMBER OF SHARES OF
DESIGNATED PROPERTY: [NUMBER OF SHARES]
EXERCISE PRICE: $______ [25% of FMV AT GRANT DATE]
GRANT DATE: [GRANT DATE]
2. The rights of the Participant or any other person entitled to
exercise the Option are governed by the terms and provisions of the Plan. All
initial capitalized terms used herein and not otherwise defined herein have the
meaning set forth in the Plan.
3. The Option may be exercised only by the Participant, the
Participant's Beneficiary, or the Participant's permitted assignee pursuant to
the Plan. The Option cannot otherwise be transferred, assigned, pledged or
hypothecated for any purpose whatsoever and is not subject, in whole or in part,
to execution, attachment, or similar process, and any such attempted action is
void.
4. Written notice of an election to exercise the Option, enclosing this
Agreement, shall be (a) delivered to the Committee at the following address, or
(b) mailed (by certified mail, postage prepaid) to the Committee at the
following address:
[CONTACT PERSON]
[ADDRESS]
5. Payment of the Exercise Price shall be made by certified check (or
other form of payment acceptable to the Corporation) concurrent with
notification to the Committee of exercise of the Option, and the Participant
must satisfy all federal, state, local, foreign, and other withholding tax
requirements in any manner permitted under the Plan.
<PAGE> 2
6. Except as otherwise provided in the Plan, the Option may be
exercised at any time during the period beginning on the 184th day after the
Grant Date and ending on the earliest of: (a) the third anniversary of the date
of the Participant's Termination of Employment, (b) the first anniversary of the
date of the Participant's death, or (c) the fifteenth anniversary of the Grant
Date. To the extent, however, that exercise of the Option would or may result in
compensation that would not be deductible to the Corporation because of the
limitations of Internal Revenue Code Section 162(m) and as hereafter amended or
otherwise modified, as determined by the Committee, exercise of the Option shall
be limited in such manner as the Committee shall determine or shall be
conditioned upon such agreement by the Participant as Committee shall determine.
7. Neither the Participant, a Beneficiary, nor any permitted assignee
shall be, or shall have any of the rights and privileges of, a stockholder with
respect to any Designated Property purchasable or issuable upon the exercise of
this Option, unless and until this Option is exercised and the purchase price
for the Designated Property has been paid in full.
8. The Option is conditioned upon the acceptance of this Agreement by
the Participant as evidenced by the return of an executed copy to the Committee
no later than ten days after the Grant Date.
9. Except to the extent governed by federal law, the Option and this
Agreement shall be construed and interpreted according to and governed in all
respects by the laws of the State of Ohio without regard to the choice of law
principles of such state.
BRUSH WELLMAN INC.
By:_______________________________ Date:____________________________
[NAME, TITLE]
I, the undersigned Participant, hereby acknowledges that I have received from
Brush Wellman Inc. the following: (1) a copy of the Brush Wellman Inc. Key
Employee Share Option Plan; (2) a copy of the Trust Agreement for Brush Wellman
Inc. Key Employee Share Option Plan; and (3) a copy of the Prospectus dated
_____________, 1998 for the Brush Wellman Inc. Key Employee Share Option Plan.
I, the undersigned Participant, hereby acknowledge that in accepting this
Agreement I am not relying upon any advice or representation or information
provided by Brush Wellman Inc., the Committee, or their affiliates, except as
described in the KESOP Election Form to which this Agreement pertains.
__________________________________ Date:____________________________
[PARTICIPANT NAME], Participant
<PAGE> 3
BRUSH WELLMAN INC.
KEY EMPLOYEE SHARE OPTION PLAN
PREAMBLE
--------
Brush Wellman Inc. (the "Corporation") hereby establishes the Brush
Wellman Inc. Key Employee Share Option Plan (the "Plan"), effective as of the
date specified herein.
The purpose of the Plan is to provide a vehicle for the payment of
compensation to participating key executives in the form of nonqualified
options. The Plan is intended to be a nonqualified stock option plan within the
meaning of Section 83 of the Internal Revenue Code, as amended, and is not
intended to be covered by the provisions of the Employee Retirement Income
Security Act of 1974, as amended.
ARTICLE I
DEFINITIONS
-----------
As used in this Plan, the following capitalized words and phrases have
the meanings indicated, unless the context requires a different meaning:
1.1 "BENEFICIARY" means the person or persons who, pursuant to the
Plan, are entitled to exercise Options after a Participant's death.
1.2 "BOARD OF DIRECTORS" or "BOARD" means the board of directors of the
Corporation.
1.3 "BUSINESS DAY" means any day on which the Corporation's
headquarters offices are open and on which the New York Stock Exchange is open
for trading.
1.4 "CODE" means the Internal Revenue Code of 1986, any amendments
thereto, and any regulations or rulings issued thereunder.
1.5 "COMMITTEE" means the Organization and Compensation Committee of
the Board of Directors, or any successor to such committee, or with respect to
any period during which no such committee or successor is acting, the Board of
Directors.
1.6 "CORPORATION" means Brush Wellman Inc. and any successor thereto.
1.7 "DESIGNATED PROPERTY" means shares of regulated investment
companies or any other property, except for cash, cash equivalents, or
securities of the Corporation or its affiliates, designated by the Committee as
subject to purchase through the exercise of an Option.
1.8 "EFFECTIVE DATE" means May 5, 1998.
<PAGE> 4
1.9 "EMPLOYEE" means any individual who is a salaried employee of the
Corporation or a Subsidiary.
1.10 "EXERCISE DATE" means, with respect to any Option, the date
determined under Section 3.2.
1.11 "EXERCISE PRICE" means the price that a Participant must pay upon
exercise of an Option.
1.12 "FAIR MARKET VALUE" means the closing price of the Designated
Property reflected in The Wall Street Journal, or other recognized market
source, as determined by the Committee, on the applicable date of reference
thereunder, or if there is no sale on such date, then the closing price on the
last previous day on which a sale is reported.
1.13 "GRANT DATE" means, with respect to any Option, the date on which
an Option first becomes effective, which date will not be earlier than the date
on which the Committee takes action to award the Option.
1.14 "OPTION" means the right of a Participant, granted by the
Corporation in accordance with the terms of this Plan, to purchase Designated
Property from the Corporation at the Exercise Price established under Section
2.3.
1.15 "OPTION AGREEMENT" means an agreement the form of which has been
approved by the Committee that has been executed by the Corporation and by a
Participant to whom an Option has been awarded, acknowledging the issuance of
the Option(s) and setting forth any terms that are not specified in this Plan.
1.16 "PARTICIPANT" means any individual who has received an Option in
accordance with Section 2.2, which Option has not expired and has not been
exercised.
1.17 "PLAN" means the Brush Wellman Inc. Key Employee Share Option
Plan, as set forth herein and as from time to time amended.
1.18 "SUBSIDIARY" means a corporation in which on the Grant Date of an
Option the Corporation owns or controls directly or indirectly more than 50% of
the total combined voting power represented by all classes of stock issued by
such corporation.
1.19 "TERMINATION OF EMPLOYMENT" means a Participant's separation from
the service of the Corporation and all Subsidiaries or other affiliates of the
Corporation for any reason.
1.20 "TRUST" means the trust that may be established pursuant to
Article VI to hold Designated Property that is subject to purchase through the
exercise of an Option.
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<PAGE> 5
1.21 "TRUST AGREEMENT" means an agreement setting forth the terms of
the Trust, which agreement will be substantially in the form attached hereto as
Exhibit A.
1.22 "TRUST FUND" means property that is held in the Trust.
1.23 "TRUSTEE" means the persons or institution acting as trustee of
the Trust.
1.24 RULES OF CONSTRUCTION
1.24.1 GOVERNING LAW. The construction and operation of this Plan are
governed by the laws of the State of Ohio.
1.24.2 HEADINGS. The headings of Articles, Sections and Subsections are
for reference only and are not to be utilized in construing the Plan.
1.24.3 GENDER. Unless clearly inappropriate, all pronouns of whatever
gender refer indifferently to persons or objects of any gender.
1.24.4 SINGULAR AND PLURAL. Unless clearly inappropriate, singular
terms refer also to the plural number and vice versa.
1.24.5 SEVERABILITY. If any provision of this Plan is held to be
illegal or invalid for any reason, the remaining provisions are to remain in
full force and effect and to be construed and enforced in accordance with the
purposes of the Plan as if the illegal or invalid provision did not exist.
ARTICLE II
AWARD OF OPTIONS
----------------
2.1 ELIGIBILITY FOR AWARDS. Awards of Options may be made to any
Employee selected by the Committee from the executive officers and other key
employees who occupy senior managerial or professional positions. In making this
selection and in determining the form and amount of Options the Committee will
consider any factors it deems relevant.
2.2 AWARDING OF OPTIONS. The recipients of Options are determined from
time to time by the Committee. No Committee member may take part in any way in
determining any award of Options to himself. The Committee may condition the
award and/or effectiveness of any Option on the surrender by the Participant of
his right to receive salary, bonus, or other cash compensation otherwise payable
in the future by the Corporation or a Subsidiary to the Participant. Awards
become effective as of the Grant Date. No award of an Option will become
effective, however, unless the Participant timely executes and returns to the
Committee the Option Agreement with respect to the Option. Awards may be made at
any time on or after the Effective Date and prior to the termination of the
Plan.
-3-
<PAGE> 6
2.3 SELECTION OF DESIGNATED PROPERTY; EXERCISE PRICE; OTHER TERMS. When
an Option is awarded, the Committee will specify the Designated Property that
may be purchased by exercise of the Option and the Grant Date and will fix any
terms of the Option not specified in the Plan. On the day the Option is awarded,
the Designated Property that may be purchased by exercising the Option must be,
and must be expected as of the Grant Date to be, readily tradable on an
established market or consist wholly of interests in property that is readily
tradable on an established market. The Exercise Price of any Option will equal
twenty-five percent (25%) of the Fair Market Value of the Designated Property on
the Grant Date.
2.4 EFFECT OF CASH DIVIDENDS AND CASH DISTRIBUTIONS ON DESIGNATED
PROPERTY. As of the first Business Day of each calendar year, an Option will be
granted automatically with respect to any cash dividends or other cash
distributions occurring during the immediately preceding calendar year with
respect to Designated Property purchasable under an Option the Grant Date of
which coincided with or preceded the date of occurrence of such cash dividends
or cash distributions that has not expired or been exercised as of such first
Business Day (the aggregate of such cash dividends and cash distributions
occurring during such immediately preceding calendar year being hereinafter
referred to as the "Additional Amount") in favor of the Participant holding such
unexercised Option on terms identical to those set forth in the Option Agreement
pertaining to such unexercised Option, except that the Grant Date of such
automatically granted Option will be such first Business Day of such calendar
year and the amount of Designated Property purchasable under such automatically
granted Option will be the amount of Designated Property that could be
purchased, based on the Fair Market Value on such Grant Date of such Designated
Property, with an amount equal to the Additional Amount divided by three fourths
(3/4). If as of the first Business Day of such calendar year the applicable
Designated Property (of the same kind) is not reasonably available, the
provisions of Section 2.5 will apply.
2.5 SUBSTITUTION OF OTHER PROPERTY FOR DESIGNATED PROPERTY;
ADJUSTMENTS. At any time after the award of an Option, the Committee may make or
provide for such adjustments in the amount of Designated Property purchasable
under the Option, the Exercise Price, and the kind of Designated Property
covered thereby, as the Committee may in good faith determine to be equitably
required in order to prevent dilution or expansion of the rights under the
Option that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
with respect to the Designated Property purchasable under the Option, or (b) any
merger, consolidation, spin-off, reorganization, partial or complete liquidation
or other distribution of assets, issuance of warrants or other rights to
purchase securities with respect to the Designated Property purchasable under
the Option or any other transaction or event having an effect similar to any of
the foregoing. In the event of any such Committee action, the Committee may
provide in substitution for the Option such alternative consideration as it may
in good faith determine to be equitable under the circumstances and may require
in connection therewith the surrender of the Option so replaced. At any time
after the award of an Option, the Committee may substitute other Designated
Property of equal Fair Market Value as of the effective date of such
substitution for the Designated Property previously subject to that Option. Any
such substitution will be effective prospectively only. After any adjustment or
substitution described in this Section 2.5, such Option will not be exercisable
for a
-4-
<PAGE> 7
period of 184 days and the period during which such Option may be exercised as
provided for under Section 3.1 will be extended by 184 days, except that in no
event will any such extension result in an Option being exercisable after the
fifth anniversary of the original term of exercisability thereof determined
under Section 3.1 and in the event an adjustment or substitution would otherwise
result in an extension of exercisability after such fifth anniversary, no period
of nonexercisability will result from such adjustment or substitution. In the
event of any such adjustment or substitution, the Committee will as soon as
practicable after such action provide written notice thereof to the Participant.
2.6 ACQUISITION OF DESIGNATED PROPERTY; TRUST. If the Corporation
acquires Designated Property purchasable upon the exercise of an Option, such
Designated Property must:
(a) not be subject to any security interest, whether or not
perfected, or to any option or contract under which any other
person may acquire any interest in it; and
(b) be readily tradable on an established market or consist wholly
of interests in property that is readily tradable on an
established market.
Upon the grant of an Option, the Corporation may acquire Designated Property and
may contribute it to the Trust, and/or make a contribution to the Trust and the
Trustee may be instructed to acquire the Designated Property. At the time
contributed to the Trust, any Designated Property will not be subject to any
security interest, whether or not perfected, or to any option or contract under
which any other person may acquire any interest in it, except as otherwise
provided in Section 6.2.
ARTICLE III
EXERCISE OF OPTIONS
-------------------
3.1 PERIOD FOR EXERCISE OF OPTIONS. Except as otherwise provided in the
Plan, Options may be exercised by a Participant at any time during the period
beginning on the 184th day after the Grant Date and ending on the earlier of:
(a) the third anniversary of the date of the
Participant's Termination of Employment;
or
(b) the fifteenth anniversary of the Grant Date.
Notwithstanding the foregoing, if the Participant is or may be an employee whose
remuneration from the Corporation is subject to Section 162(m) of the Code, as
determined by the Committee, the Committee may condition, limit and/or delay the
exercise of such Participant's Options in such manner as the Committee may in
good faith determine to be necessary or desirable in order to prevent
disallowance of the Corporation's deductions by reason of Section 162(m) of the
Code with respect to the exercise of such Options.
-5-
<PAGE> 8
Except as provided in Section 3.4, an Option may not be exercised during a
Participant's lifetime except by the Participant or, in the event of the
Participant's legal incapacity, by his guardian or legal representative acting
in a fiduciary capacity on behalf of the Participant under state law and court
supervision, or if the Committee determines that the Participant is unable to
care for his affairs because of mental or physical disability the Committee may
permit a person determined by the Committee to be the duly authorized
attorney-in-fact of the Participant under a written power of attorney to
exercise the Option on the Participant's behalf. If a Participant dies before
all of his Options have been exercised, any Options that remain outstanding may
be exercised by his Beneficiary, subject to all of the terms, conditions, and
restrictions applicable to the Option as set forth in the Plan and the Option
Agreement, except that the right of a Beneficiary to exercise any Option ceases
on the last day on which the Participant could have exercised the Option had his
death not occurred or the first anniversary of the Participant's date of death,
whichever is earlier. References in the Plan to a Participant will be construed
to refer to a deceased Participant's Beneficiary as appropriate.
Any Option that has not been exercised by the close of business on the last day
provided for under the Plan or in the Option Agreement for the exercise thereof
(or under any extension thereof) will expire automatically and will not
thereafter be exercisable.
3.2 PROCEDURE FOR EXERCISING OPTION. A Participant may exercise an
Option by giving written notice to the Committee. Such written notice of
exercise must be in such form as the Committee may require, must be properly
completed and include the Option Agreement for each Option to be exercised, and
must be mailed or delivered to the Committee as provided in Section 7.4. Options
may be exercised in any combinations or amounts subject to the restrictions set
forth in the Plan, except that the Committee may from time to time require a
minimum number of Options to be exercised at one time, but such minimum number
will not be designed to impose any substantial restriction on a Participant's
ability to exercise Options. In no case may part of an Option be exercised.
Except as otherwise provided in the Plan or in any Option Agreement, the
"Exercise Date" of an Option will be the first Business Day on which the
Committee is in actual receipt of the written notice of exercise. Upon exercise
of an Option, the Participant must pay the Exercise Price of the Option to the
Corporation. The consideration to be paid in satisfaction of the Exercise Price
will be cash in the form of currency, check, or other cash equivalent, in each
case acceptable to the Corporation. The Exercise Price must be paid in full
before delivery of the Designated Property will be made in accordance with
Section 3.5.
3.3 INALIENABILITY OF OPTIONS. Except as otherwise provided in Section
3.4, no Option granted under this Plan may be transferred, assigned or
alienated, except as provided herein, and no Option will be subject to
execution, attachment or similar process, and any attempt to transfer, assign,
alienate, execute upon, attach, or subject to process any Option will be void ab
initio.
3.4 PERMITTED TRANSFERS. A Participant may at any time prior to his
death, assign all or any portion of an Option to any one or more members of the
Participant's "Immediate Family" (as defined in Rule 16a-1(e) under the
Securities Exchange Act of 1934) or to one or more trusts
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established solely for the benefit of one or more members of the Participant's
Immediate Family or to one or more partnerships in which the only partners are
members of the Participant's Immediate Family. Any such assignment will be
effective, however, only if it is expressly approved in writing by the
Committee, the Participant receives no consideration for the assignment, and the
assignment is evidenced by an appropriate written document executed by the
Participant, and delivered to the Committee on or before the effective date of
the assignment. In the event of such assignment, the permitted assignee will be
entitled to (and the Participant will not be entitled to) all of the rights of
the Participant with respect to the assigned Option, and such portion of the
Option will continue to be subject to all of the terms, conditions, and
restrictions applicable to the Option, as set forth in the Plan and the Option
Agreement. References in the Plan to a Participant who has properly effected
such an assignment will be construed to refer to such Participant's assignee as
appropriate.
3.5 DELIVERY OF DESIGNATED PROPERTY. Following the Exercise Date and
receipt by the Corporation of the Exercise Price, the Corporation will deliver
or cause to be delivered the Designated Property then being purchased to the
Participant. The Corporation will use its reasonable best efforts to deliver the
Designated Property to the Participant, or to cause such delivery of the
Designated Property to the Participant to occur within ten Business Days after
receipt by the Corporation of the Exercise Price, or, if later than ten Business
Days after receipt by the Corporation of the Exercise Price as soon as
reasonably practicable thereafter. The Corporation will not, however, be
required to issue any fractional shares of Designated Property, and the
Committee may provide for the elimination of fractions or for the settlement
thereof in cash. In the event that the listing, registration or qualification of
the Option or the Designated Property on any securities exchange or under any
state or federal law, or the consent or approval of any governmental regulatory
body, is necessary as a condition of, or in connection with, the exercise of the
Option, then the Option will not be exercised in whole or in part until such
listing, registration, qualification, consent or approval has been effected or
obtained.
3.6 TAX WITHHOLDING. Whenever Designated Property is to be delivered
upon exercise of an Option under the Plan, the Corporation will require as a
condition of such delivery (a) a cash payment to the Corporation by the
Participant, in the form of currency, check, or other cash equivalent, in each
case acceptable to the Corporation, of an amount determined by the Corporation
to be sufficient to satisfy all federal, state, local, foreign or other tax
withholding requirements related thereto, (b) the withholding of such amount
from compensation otherwise due to the Participant, or (c) any combination of
the foregoing. As soon as practicable following receipt by the Corporation of a
properly completed notice of exercise of an Option from a Participant, the
Corporation will notify the Participant of the withholding amount determined by
the Corporation.
3.7 BENEFICIARY. The Committee may permit a Participant to designate a
Beneficiary on a form therefor prescribed by the Committee on which the
Participant may designate a Beneficiary (and change a previous designation) by
filing the prescribed form with the Committee. If so prescribed by the
Committee, such form may allow the designation of multiple Beneficiaries
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and/or a successor Beneficiary or successor Beneficiaries and may allow
different Beneficiaries to be designated by the same Participant for different
Options. The consent of any current Beneficiary is not required for a change of
Beneficiary, and no Beneficiary has any rights under this Plan except as are
provided by its terms. The rights of a Beneficiary who predeceases the
Participant who designated him immediately terminate. Unless a Beneficiary has
been designated in accordance with this Section 3.7 and such Beneficiary
survives the Participant, the Beneficiary of any Participant is his estate.
ARTICLE IV
AMENDMENT OR TERMINATION OF THE PLAN
------------------------------------
4.1 CORPORATION'S RIGHT TO AMEND OR TERMINATE PLAN. The Board may, in
its sole discretion, at any time and from time to time, amend, in whole or in
part, any of the provisions of this Plan or may terminate it as a whole or with
respect to any Participant or group of Participants. Any such amendment or
termination by the Board is binding upon all affected Participants and
Beneficiaries, the Committee, and all other parties in interest. Any action of
the Board amending or terminating the Plan becomes effective as of the date
specified therein. Any action of the Board amending or terminating the Plan will
not affect adversely any Option awarded prior to such action of the Board,
except for amendments that would be permissible amendments if made by the
Committee to an Option Agreement under Section 4.2(a), Section 4.2(b), or
Section 4.2(d). The Board will provide written notice of any such amendment or
termination of the Plan to the Committee and any affected Participant as soon as
practicable following the adoption of such amendment or termination.
4.2 AMENDMENT OF OPTIONS. An Option Agreement may be amended, in whole
or in part, by the Committee at any time and from time to time if the Committee
determines that an amendment is equitably required as a result of:
(a) any addition to or change in the Code or any other law or
regulation that occurs after the Grant Date and that affects
the Option,
(b) any adjustment or substitution of Designated Property pursuant
to Section 2.5,
(c) any Plan amendment or termination pursuant to Section 4.1,
provided that the amendment does not materially affect the
terms, conditions and restrictions applicable to the Option,
or
(d) any circumstances not specified in Paragraphs (a), (b), or
(c), with the consent of the Participant.
Any such amendment by the Committee is binding upon the affected Participant,
any Beneficiary of the Participant, and all other parties in interest. The
Committee will provide written notice to the affected Participant as soon as
practicable after the Committee action amending the Option Agreement.
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ARTICLE V
ADMINISTRATION
--------------
5.1 THE COMMITTEE. The Plan will be administered by the Committee. The
Committee will act by a majority of its members at the time in office and may
take action either by vote at a meeting or by consent in writing without a
meeting. All authority, powers and responsibilities of the Committee under the
Plan will be exercised by the Committee in its sole discretion.
5.2 POWERS OF THE COMMITTEE. For purposes of the Plan, the Committee
will have, in addition to any other powers conferred by the Plan or by law, the
following powers:
(a) to maintain all records necessary for the administration of
the Plan;
(b) to prescribe, amend, and rescind rules for the administration
of the Plan to the extent not inconsistent with the terms
thereof;
(c) to appoint such individuals and subcommittees as it deems
desirable for the conduct of its affairs and the
administration of the Plan;
(d) to delegate to officers or employees of the Corporation who
are not Participants, part or all of its authority, powers,
and responsibilities under the Plan, upon such terms as it
deems advisable;
(e) to employ counsel, accountants actuaries, and other
consultants to aid in exercising its powers and carrying out
its duties under the Plan; and
(f) to perform any other acts necessary and proper for the conduct
of its affairs and the administration of the Plan.
5.3 DETERMINATIONS BY THE COMMITTEE. The Committee will interpret and
construe the Plan and the Option Agreements, and its interpretations and
determinations will be conclusive and binding on all Participants, Beneficiaries
and any other persons claiming an interest under the Plan or any Option
Agreement.
5.4 INDEMNIFICATION OF THE COMMITTEE. The Corporation will indemnify
and hold harmless each member of the Committee against any and all expenses and
liabilities arising out of such member's action or failure to act in such
capacity, excepting only expenses and liabilities arising out of such member's
own willful misconduct or gross negligence.
(a) Expenses and liabilities against which a member of the
Committee is indemnified hereunder will include, without
limitation, the amount of any settlement or judgment, costs,
counsel fees and related charges reasonably incurred in
connection with a claim asserted or a proceeding brought
against him or the settlement thereof.
(b) This right of indemnification will be in addition to any other
rights to which any member of the Committee may be entitled.
(c) The Corporation may, at its own expense, settle any claim
asserted or
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proceeding brought against any member of the Committee when
such settlement appears to be in the best interests of the
Corporation, with such member's consent which will not be
unreasonably withheld.
5.5 EXPENSES OF THE COMMITTEE. The members of the Committee will serve
without compensation for services as such. All expenses of the Committee will be
paid by the Corporation.
ARTICLE VI
TRUST PROVISIONS
----------------
6.1 ESTABLISHMENT OF THE TRUST. The Trust may be established to hold
Designated Property. Except as otherwise provided in the Trust Agreement, no
portion of the Trust Fund will be used for any purpose other than the delivery
of Designated Property pursuant to the exercise of an Option, and the payment of
expenses of the Trust.
6.2 TRUST STATUS. The Trust is intended to be a grantor trust, within
the meaning of section 671 of the Code, of which the Corporation is the grantor,
and this Plan is to be construed in accordance with that intention.
Notwithstanding any other provision of this Plan, the Trust Fund will remain the
property of the Corporation and will be subject to the claims of its creditors
in the event of its bankruptcy or insolvency. No Participant or person claiming
through a Participant will have any priority claim on the Trust Fund or any
security interest or other right superior to the rights of a general creditor of
the Corporation.
ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
7.1 NO RIGHTS TO DESIGNATED PROPERTY. Neither the Participant nor any
person claiming through the Participant will be, or will have any of the rights
and privileges of, a stockholder or owner with respect to any Designated
Property purchasable upon the exercise of an Option, prior to the exercise of
such Option.
7.2 NO RIGHT TO CONTINUED EMPLOYMENT. Nothing contained in the Plan
will be deemed to give any person the right to be retained in the employ of the
Corporation or any Subsidiary or their affiliates, or to interfere with the
right of the Corporation or any Subsidiary or their affiliates to discharge any
person at any time without regard to the effect that such discharge will have
upon such person's rights or potential rights, if any, under the Plan.
7.3 RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Participant under the Plan or any Option will not be taken into account in
determining any benefits under any profit-sharing, retirement or other benefit
or compensation plan or arrangement maintained by the Corporation or a
Subsidiary or their affiliates and will not affect the amount of any life
insurance
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coverage available under any life insurance plan or arrangement covering
employees of the Corporation or a Subsidiary or their affiliates, except to the
extent provided under such plan or arrangement.
7.4 NOTICES. Unless otherwise specified in an Option Agreement, any
notice to be provided under the Plan to the Committee will be mailed (by
certified mail, postage prepaid) or delivered to the Committee in care of the
Corporation at its executive offices, and any notice to the Participant will be
mailed (by certified mail, postage prepaid) or delivered to the Participant at
the current address shown on the payroll records of the Corporation. No notice
will be binding on the Committee unless received by the Committee, and no notice
will be binding on the Participant unless received by the Participant. Any such
notice will be deemed to be given only on the date received.
IN WITNESS WHEREOF, Brush Wellman Inc. has caused these presents to be
executed by its duly authorized officer by authority of its Board of Directors
this ____ day of __________________ , 1998.
BRUSH WELLMAN INC.
By:________________________________
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Exhibit 5.1
-----------
THOMPSON HINE & FLORY LLP
2000 Courthouse Plaza NE
P.O. Box 8801
Dayton, Ohio 45401-8801
May 5, 1998
Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
Gentlemen:
We have acted as counsel to Brush Wellman Inc., an Ohio corporation (the
"Company"), in connection with the Brush Wellman Inc. Key Employee Share Option
Plan (the "Plan") and the preparation of the Company's Registration Statement on
Form S-8 being filed with the Securities and Exchange Commission in connection
therewith.
Please be advised that we have examined such proceedings and records of the
Company, and have made investigation of such other matters, as in our judgment
permits us to render an informed opinion on the matters set forth herein.
Based upon the foregoing, it is our opinion that the Plan has been duly
authorized and that the options to purchase designated property to be granted by
the Company under the Plan when granted in accordance with the terms of the
Plan will be binding and enforceable obligations of the Company, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, marshaling or similar laws now or hereafter in effect affecting
creditors' rights and remedies generally and general principals of equity
(regardless of whether such enforceability is considered in equity or at law).
We consent to the use of this opinion as an exhibit to the Company's
Registration Statement on Form S-8 with respect to the Plan.
Very truly yours,
/s/ Thompson Hine & Flory LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Brush Wellman Inc. Key Employee Share Option Plan
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 the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
----------------------------
Ernst & Young LLP
Cleveland, Ohio
May 4, 1998
<PAGE> 1
Exhibit 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the use in Amendment No. 1 to Registration Statement 333-47957 of
United Community Financial Corp. on Form S-1 of our report dated February 28,
1997, appearing in the Prospectus, which is part of such Registration Statement.
We also consent to the reference to us under the headings, "Change in
Accountants," and "Experts" in such Prospectus.
Packer, Thomas & Co.
Youngstown, Ohio
May 4, 1998
