<PAGE> 1
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)
OHIO 34-0119320
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
17876 St. Clair Avenue, Cleveland, Ohio 44110
(Address of Principal Executive Offices Including Zip Code)
BRUSH WELLMAN INC. DEFERRED COMPENSATION PLAN
FOR NONEMPLOYEE DIRECTORS
(AS AMENDED AND RESTATED AS OF DECEMBER 2, 1997)
(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
<TABLE>
<CAPTION>
==================================================================================================================================
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 60,000 $ 14.75 $ 885,000 $ 261.08
==================================================================================================================================
</TABLE>
(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. Deferred Compensation Plan for Nonemployee Directors (As
Amended and Restated as of December 2, 1997) (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 4
Page 1 of 4 Pages
<PAGE> 2
Part II
Pursuant to General Instruction E to Form S-8, the contents of
Registration Statement No. 33-48866 on Form S-8 as filed by Brush Wellman Inc.
(the "Registrant") with the Securities and Exchange Commission on June 26, 1992
are incorporated herein by reference.
Item 8. Exhibits
--------
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. Deferred Compensation Plan for Nonemployee
Directors (As Amended and Restated as of December 2, 1997).
5 Opinion of Counsel.
23(a) Consent of Independent Auditors.
23(b) Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.
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 2 of 4 Pages
<PAGE> 3
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Chairman of the Board, President, September 14, 1998
- ---------------------- Chief Executive Officer and Director
Gordon D. Harnett (principal executive officer)
* Vice President and Chief Financial September 14, 1998
- ---------------------- Officer (principal financial and
Carl Cramer accounting officer)
* Director September 14, 1998
- ----------------------
Albert C. Bersticker
* Director September 14, 1998
- ----------------------
Charles F. Brush, III
* Director September 14, 1998
- ----------------------
David L. Burner
* Director September 14, 1998
- ----------------------
Joseph P. Keithley
Director September 14, 1998
- ----------------------
William P. Madar
Director September 14, 1998
- ----------------------
Robert M. McInnes
* Director September 14, 1998
- ----------------------
William R. Robertson
* Director September 14, 1998
- ----------------------
John Sherwin, Jr.
* 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
------------------------
Michael C. Hasychak, Attorney-in-Fact
Page 3 of 4 Pages
<PAGE> 4
EXHIBIT INDEX
-------------
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. Deferred Compensation Plan for Nonemployee
Directors (As Amended and Restated as of December 2, 1997).
5 Opinion of Counsel.
23(a) Consent of Independent Auditors.
23(b) Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.
Page 4 of 4 Pages
<PAGE> 1
Exhibit 4(d)
BRUSH WELLMAN INC.
DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
(AS AMENDED AND RESTATED AS OF DECEMBER 2, 1997)
ARTICLE I
PURPOSE OF THE PLAN
The purpose of the Brush Wellman Inc. Deferred Compensation Plan for
Nonemployee Directors is to provide the Nonemployee Directors of the Company
with the opportunity to defer receipt of compensation payable for services as a
Director and to help solidify the common interest of Directors and shareholders
in enhancing the value of the Company's Common Shares.
ARTICLE II
DEFINITIONS
As used herein, the following words shall have the meanings stated
after them unless otherwise specifically provided:
2.1. "Change in Control" shall have the meaning assigned thereto in
Section 5.5 hereof.
2.2. "Committee" shall mean the Administrative Committee described in
Section 7.1 hereof.
2.3. "Common Shares" shall mean the Common Shares, par value $1 per
share, of the Company.
2.4. "Company" shall mean Brush Wellman Inc.
2.5. "Deferred Compensation Account" shall have the meaning assigned
thereto in Section 3.1 hereof.
2.6. "Director" shall mean any nonemployee director of the Company.
2.7. "Insolvent" shall have the meaning assigned thereto in Section 6.2
hereof.
2.8. "Investment Policy" means the Company's existing policy for
investment of liquid assets as the same may be amended from time to time by the
Company.
<PAGE> 2
2.9. "Plan" shall mean the Brush Wellman Inc. Deferred Compensation
Plan for Nonemployee Directors, as amended from time to time.
2.10. "Terminated Participant" shall have the meaning assigned thereto
in Section 8.3 hereof.
2.11. "Trust" shall have the meaning assigned thereto in Section 4.1
hereof.
2.12. "Trust Account" shall have the meaning assigned thereto in
Section 4.2 hereof.
2.13. "Trust Agreement" shall mean the Trust Agreement entered into
between the Company and the Trustee in connection with the Plan.
2.14. "Trust Fund" shall have the meaning assigned thereto in Section
4.2 hereof.
2.15. "Trustee" shall mean such person or entity as may be chosen by
the Company from time to time to act as the trustee under the Trust Agreement,
together with the successors of such person or entity as may be provided in the
Trust Agreement.
ARTICLE III
ELECTIONS BY DIRECTORS
3.1. 1992 Compensation Reduction. Not later than December 31, 1991, a
Director may, by filing a written election with the Committee, direct the
Company (a) to reduce the compensation payable to him or her (determined without
regard to the provisions of this Section) for services as a Director during the
1992 calendar year in such amount as elected by the Director and (b) to credit
the amount of such reduction to an account maintained on the books of the
Company for such Director (the "Deferred Compensation Account").
3.2. Compensation Reduction for 1993 and Later Years. Not later than
June 30,1992 and December 31st of any calendar year thereafter, a Director may,
by filing a written election with the Committee, direct the Company (a) to
reduce the compensation payable to him or her (determined without regard to the
provisions of this Section) for services as a Director during the next calendar
year in such amount as elected by the Director and (b) to credit the amount of
such reduction to the Director's Deferred Compensation Account.
3.3. Partial Years. If a Director first becomes a Director after
January 1st of any calendar year, the Director may, by filing a written election
with the Committee, direct the Company (a) to reduce the compensation payable to
him or her for future services as a Director during the year in such amount as
elected by the Director and (b) to credit the amount of such reduction to the
Director's Deferred Compensation Account. Any such election shall be made within
30 days after an individual becomes a Director, and shall apply only to
compensation for services as a Director performed after the date of such
election.
2
<PAGE> 3
3.4 Conversion from the Directors' Retirement Plan. Not later than
December 31, 1997, each Director may make an election to credit the present
value as of December 31, 1997 of his or her vested benefit under the Brush
Wellman Inc. Directors' Retirement Plan As Amended January 26, 1993 (the
"Directors' Retirement Plan"), which is being terminated, to his or her
Directors' Deferred Compensation Account. Payment will be made pursuant to
Article V hereof, and in no event shall a Director be entitled to payment prior
to termination of service as a Director.
3.5. Elections Irrevocable. All elections described in this Article
shall be made on an election form specified by the Committee and filed with the
Committee. Once an election becomes effective pursuant to this Article, such
election shall be irrevocable and shall remain in effect until the end of the
calendar year to which it relates.
3.6. Deferred Compensation Accounts. (a) Following any initial filing
of a written election with the Committee pursuant to Section 3. 1 or 3.2 hereof
by a Director who has previously entered into a deferred compensation agreement
or arrangement with the Company, the Company shall credit such Director's
Deferred Compensation Account with the amounts previously deferred by such
Director pursuant to such deferred compensation agreement or arrangement,
together with an amount equal to any interest credited thereon in accordance
with such deferred compensation agreement or arrangement to the date of such
credit.
(b) Each Director who has elected to have his or her compensation
reduced pursuant to this Article shall have a nonforfeitable right to the
balance from time to time of his or her Deferred Compensation Account. In
addition to the credits to a Director's Deferred Compensation Account described
in Sections 3.1, 3.2, 3.3, 3.4 and 3.6(a) hereof, a Director's Deferred
Compensation Account shall be credited or debited with, amounts equal to the
income, earnings, gains or losses on the Trust Account maintained with respect
to the Director under the Trust Agreement at such times as such items are
credited to or debited from such Trust Account and shall be debited for any
distributions to the Director under Article V.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
4.1. Contribution. (a) The Company shall from time to time transfer to
the Trustee to be held under the Trust Agreement in a trust (the "Trust") cash
funds equal to the amounts by which Directors elect to have their compensation
reduced pursuant to this Plan. All such transfers shall be made within 30 days
after such compensation would have been paid to the Director but for the
Director's compensation reduction election.
(b) Following any initial filing of a written election with the
Committee pursuant to Section 3.1 or 3.2 hereof by a Director who has previously
entered into a deferred compensation agreement or arrangement with the Company,
the Company shall transfer to the Trustee to be held in the Trust for the
account of such Director pursuant to Section 4.2 hereof cash funds equal to the
amounts previously deferred pursuant to such deferred compensation agreement or
arrangement, together with an amount
3
<PAGE> 4
equal to any interest credited thereon in accordance with such deferred
compensation agreement or arrangement to the date of such transfer.
(c) Following the filing of a written election with the Committee
pursuant to Section 3.4 hereof and within a reasonable time after December 31,
1997, the Company shall transfer to the Trustee to be held in the Trust for the
account of such Director pursuant to Section 4.2 hereof the cash funds equal to
the amount which such Director elected to be converted from the Directors
Retirement Plan pursuant to Section 3.4 hereof.
(d) Except as provided with respect to the creditors of the Company in
Article VI hereof, all contributions and other transfers by the Company to the
Trust pursuant to Sections 4.1(a), (b) and (c) hereof shall be irrevocable, and
(except as so provided) the Company shall have no right to the return of any
funds so contributed or transferred to the Trust or any earnings thereon.
4.2. Establishment and Adjustment of Accounts. The Trustee shall
establish a separate account under the Trust (a "Trust Account") for any
Director who defers compensation pursuant to the Plan. As of December 31 of each
year and on such other dates as the Committee may direct, the fair market value
of the assets of the Trust allocated to all Trust Accounts (the "Trust Fund")
shall be determined by the Trustee.
4.3. Investment of Assets. The assets of the Trust Fund shall be held
by the Trustee in the name of the Trust. As amounts are received by the Trustee,
it shall invest the funds pursuant to the Trust Agreement, which shall authorize
the Trustee to invest the funds contained in each Trust Account either (i) in
Common Shares or (ii) in accordance with the Investment Policy, in each case as
the Director for whom such Trust Account is held may direct. Any Trust Account
may be invested pursuant to a Director's election in part in Common Shares and
in part in accordance with the Investment Policy in increments of 5 percent. A
Director may change his election from time to time with respect to future
additions to his Deferred Compensation Account, but may not change such election
with respect to amounts previously credited at any time. However, in the event
that a Director elects to invest all or a portion of the amounts in the Trust
Account held for his benefit attributable to his compensation reduction election
for the 1992 calendar year in Common Shares, such amounts shall be invested in
accordance with the Company's Investment Policy until July l, 1992, at which
time such amounts (plus any earnings thereon and less any losses attributable
thereto) shall be invested in Common Shares. All earnings, if any, with respect
to a Director's Trust Account shall be credited to such Director's Trust Account
and invested from time to time in accordance with such Director's latest
investment election. All Common Shares credited to a Director's Trust Account
shall be voted by the Trustee in accordance with such Director's instructions
and, in the absence of any instructions, by the Trustee in proportion to the
votes of all other shareholders.
4.4. Assets Held in Cash. The Trustee may, in its sole discretion,
maintain in cash such amounts as it deems necessary to meet the needs of the
Trust from time to time. Amounts maintained in cash by the Trustee shall be kept
to a minimum consistent with the duties and obligations of the Trustee as set
forth in the Trust Agreement and shall not be required to be invested at
interest.
4.5. Trustee's Fees. The fees and expenses of the Trustee under the
Trust Agreement shall be paid by the Company.
4
<PAGE> 5
ARTICLE V
PAYMENT OF ACCOUNTS
5.1. Time of Payment. Distribution of a Director's Deferred
Compensation Account shall commence or be made in the manner described in
Section 5.2 hereof within 10 days after the earlier of: (i) the date the
Director attains age 70, (ii) the date of the Director's termination of service
as a Director on account of resignation, retirement, death or otherwise or (iii)
the occurrence of a Change in Control of the Company. However, if the amount
credited to any Director's Deferred Compensation Account is less than one year's
retainer ($17,500 as of January 1, 1998) the distribution shall be in a lump sum
on the date of termination.
5.2. Method of Distribution. At the time of a Director's initial
election and at the time to convert his or her vested benefits from the
Directors' Retirement Plan described in Article III, the Director making such
election shall specify whether amounts credited to his Deferred Compensation
Account shall be distributed to him or her (or his or her beneficiary) in a
single lump sum payment at the time described in Section 5.1, or in not more
than ten annual installments commencing at such time. Notwithstanding the
foregoing, if any director electing to credit amounts to his or her Deferred
Compensation Account upon termination of the Directors' Retirement Plan pursuant
to Section 3.4, ceases to be a Director within one year after signing such
election other than by reason of death, disability or failure to be re-elected
as a Director, the applicable portion of the distribution shall be in lump sum.
Amounts credited to the Director's Deferred Compensation Account shall be
distributed or commence to be distributed to the Director or the Director's
beneficiary at the time described in Section 5.1 in the manner so specified. The
amount of each installment payment shall be calculated by dividing the amount
credited to the Director's Deferred Compensation Account at the time of each
such payment (as determined by the Committee) by the number of remaining
installments (including the current installment). If the Company is not
Insolvent at the time of any payment, the payment shall be made from the Trust
and charged to the Director's Trust Account. To the extent that the Director's
Trust Account is invested in Common Shares of the Company at the time of a
payment from such Trust Account, such Common Shares shall be distributed in
kind.
5.3. Designation of Beneficiary. Each Director participating in this
Plan shall designate a beneficiary or beneficiaries to whom distribution shall
be made pursuant to Section 5.2 in the event of the death of the Director before
his or her entire Deferred Compensation Account is distributed. If there is no
designated beneficiary, or no designated beneficiary surviving at a Director's
death the Director's beneficiary shall be his or her estate. Beneficiary
designations shall be made in writing. A Director may designate a new
beneficiary or beneficiaries at any time by filing a new election with the
Committee.
5.4. Taxes. In the event any taxes are required by law to be withheld
or paid from any distributions made pursuant to the Plan, the Company or Trustee
(as applicable) shall deduct such amounts from such distributions and shall
transmit the withheld amounts to the appropriate taxing authority.
5.5. Definition of Change in Control. A "Change in Control" of the
Company shall have occurred if at any time any of the following events shall
occur:
5
<PAGE> 6
(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 is serving on January 1, 1992. An Approved Director is a director
who, after such date, is elected, 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;
(b) Any person (as the term "person" is defined in Section
1701.01(G) of the Ohio Revised Code) shall have made a "control share
acquisition" (as the term "control share acquisition" is defined in
Section 1701.01(Z) of the Ohio Revised Code) of shares of the Company
without having first complied with Section 1701.831 of the Ohio Revised
Code (dealing with control share acquisitions); or
(c) The Board of Directors shall at any time determine in the
good faith exercise of its judgment that (i) any particular actual or
proposed accumulation of shares of the Company, tender offer for shares
of the Company, merger, consolidation, sale of assets, proxy contest,
or other transaction or event or series of transactions or events will,
or is likely to, if carried out, result in a Change in Control falling
within Sections 5.5(a) or 5.5(b) hereof and (ii) it is in the best
interests of the Company and its shareholders, and will serve the
intended purposes of this Plan and the Trust, for distributions of
Deferred Compensation Accounts to commence immediately as herein
provided.
ARTICLE VI
CREDITORS AND INSOLVENCY
6.1. Claims of the Company's Creditors. All assets held in the Trust
pursuant to the Plan, and any payment to be made by the Trustee pursuant to the
Plan and Trust Agreement, shall be subject to the claims of the general
creditors of the Company, including judgment creditors and bankruptcy creditors.
The rights of a Director or his or her beneficiaries to any assets of the Trust
Fund shall be no greater than the rights of an unsecured creditor of the
Company.
6.2. Notification of Insolvency. In the event the Company becomes
Insolvent (as hereinafter defined), the Board of Directors of the Company and
the chief executive officer of the Company shall immediately notify the Trustee
of that fact. The Trustee shall not make any payments from the Trust Fund to any
Director or any beneficiary under the Plan after such notification is received
or at any time after the Trustee has knowledge of such Insolvency. Under any
such circumstance, the Trustee shall deliver any property held in the Trust Fund
only as a court of competent jurisdiction may direct to satisfy the claims of
the Company's creditors. For purposes of this Plan, the Company shall be deemed
to be "Insolvent" if the Company is subject to a pending voluntary or
involuntary proceeding as a debtor under the United States Bankruptcy Code, as
amended, or is unable to pay its debts as they mature.
6
<PAGE> 7
ARTICLE VII
ADMINISTRATION
7.1. Appointment of Committee. The Board of Directors of the Company
shall appoint an Administrative Committee consisting of not less than three
persons to administer the Plan. Members of the Committee shall hold office at
the pleasure of the Board of Directors and may be dismissed at any time with or
without cause. Such persons serving on the Committee need not be members of the
Board of Directors of the Company.
7.2. Powers of the Committee. The Committee shall administer the Plan
and resolve all questions of interpretation arising under the Plan. Whenever
elections, directions, designations, applications, requests or other notices are
to be given or made by a Director under the Plan, they shall be filed with the
Committee. Except as provided in Section 8.3 hereof, the Committee shall have no
discretion with respect to Plan contributions or distributions, but shall act in
an administrative capacity only.
7.3. Indemnity of Committee. The Company shall indemnify the members of
the Committee against all claims, losses, damages, expenses and liabilities
arising from any action or failure to act with respect to the Plan to the extent
provided in the Regulations of the Company and any applicable indemnification
agreement between the Company and such member.
ARTICLE VIII
MISCELLANEOUS
8.1. Funding. Neither any Director, nor his or her beneficiaries, nor
his or her heirs, successors or assigns, shall have any secured interest in or,
claim on any property or assets of the Company or the Trust. The Company's
obligation under the Plan shall be merely that of an unfunded and unsecured
promise of the Company to pay money in the future. The Company shall create the
Trust to hold funds to be used in payment of its obligations under the Plan and
to provide a measure of the benefits payable to the Director hereunder, and
shall fund such Trust in accordance with the terms of the Plan, but all funds
contained therein shall remain subject to the claims of the Company's general
creditors as provided in Article VI hereof.
8.2. Term of Plan. The Company reserves the right to amend the Plan or
Trust Agreement or terminate the Plan at any time; provided, however, that no
amendment or termination shall affect the rights of Directors to amounts
previously credited to their Deferred Compensation Accounts or to additional
credits to their Deferred Compensation Accounts pursuant to Section 3.5 hereof
for additional earnings of the Trust following such termination. The Trust shall
remain in effect until such time as the entire corpus of the Trust Fund has been
distributed pursuant to the terms of the Plan, and the Plan shall remain in
effect until such time as all amounts credited to Directors' Deferred
Compensation Accounts are distributed pursuant to Article V hereof.
7
<PAGE> 8
8.3. Assignment. No right or interest of any Director or his or her
beneficiary (or any person claiming through or under such Director or his or her
beneficiary) in any benefit or payment herefrom shall be assignable or
transferable in any manner or be subject to alienation, anticipation, sale,
pledge, encumbrance or other legal process or in any manner be liable for or
subject to the debts or liabilities of such Director.
If any Director or any such person (other than the surviving spouse of
such Director after he or she is deceased) shall attempt to or shall transfer,
assign, alienate, anticipate, sell, pledge or otherwise encumber his or her
benefits hereunder or any part thereof, or if by reason of his or her bankruptcy
or other event happening at any time such benefits would devolve upon anyone
else or would not be enjoyed by him or her, then the Committee, in its
discretion, may terminate his or her interest in any such benefit, to the extent
the Committee considers necessary or advisable to prevent or limit the effects
of such occurrence, by filing a written "termination declaration" with the
Committee records and making reasonable efforts to deliver a copy to such
Director or his or her beneficiary whose interest is adversely affected (the
"Terminated Participant").
As long as any Terminated Participant is alive, any benefits affected
by the termination declaration shall be retained by the Company and, in the
Committee's sole and absolute judgment, may be paid to or expended for the
benefit of such Terminated Participant, his or her spouse, his or her children
or any other person or persons in fact dependent upon him or her in such a
manner as the Committee shall deem proper. Upon the death of any Terminated
Participant, all benefits withheld from him or her and not paid to others in
accordance with the preceding sentence shall be distributed to such Terminated
Participant's surviving spouse or, if there is no surviving spouse, to such
Terminated Participant's then living descendants, including adopted children,
per stirpes, or if there is no surviving spouse and no surviving descendants, to
such Terminated Participant's estate. Payments described in this paragraph shall
be made from the Trust if the Company is not Insolvent at the time for any such
payment.
8.4. Tax Effect. This Plan is intended to be treated as an unfunded
deferred compensation plan under the Internal Revenue Code. It is the intention
of the Company that the amounts by which Directors elect to have their
compensation reduced pursuant to this Plan shall not be included in the gross
income of the Directors or their beneficiaries until such time as the amounts
credited to Directors' Deferred Compensation Accounts hereunder are distributed
from the Plan. If, at any time, it is determined by the Company that amounts
attributable to Directors' compensation reduction elections or Deferred
Compensation Accounts are includible in the gross income of the Directors or
their beneficiaries before distribution pursuant to Article V hereof, all
amounts credited to Directors' Deferred Compensation Accounts shall be
immediately distributed to the respective Directors or, in the case of deceased
Directors, their beneficiaries. Distributions described in the preceding
sentence shall be made from the Trust if the Company is not Insolvent at the
time for such distribution.
8.5. Governing Law. This Plan shall be governed by and construed in
accordance with the internal substantive laws of the State of Ohio.
8.6. Successors. The provisions of this Plan shall bind and inure to
the benefit of the Company and its successors and assigns. The term "successors"
as used herein shall include any corporate or other business entity which shall,
whether by merger, consolidation, purchase or otherwise,
8
<PAGE> 9
acquire all or substantially all of the business and assets of the Company and
successors of any such corporation or other business entity.
8.7. Effective Date of Plan. The Plan shall be effective as of January
1, 1992, subject to approval by the shareholders of the Company. Any
compensation reduction elections, credit to Deferred Compensation Accounts or
contributions to the Trust made prior to such shareholder approval shall be
contingent on such approval, and if such approval is not obtained prior to
December 31, 1992, all Deferred Compensation Accounts shall be distributed to
the Directors or their beneficiaries. Distributions described in the preceding
sentence shall be made from the Trust if the Company is not Insolvent at the
time for such distribution.
8.8. No Right to Continued Service. Nothing contained herein shall be
construed to confer upon any Director the right to continue to serve as a
Director of the Company or in any other capacity.
9
<PAGE> 1
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: Deferred Compensation Plan for Nonemployee Directors
(as Amended and Restated as of December 2, 1997)
----------------------------------------------------
Ladies and Gentlemen:
I have acted as counsel for Brush Wellman Inc., an Ohio corporation
(the "Company"), in connection with the Brush Wellman Inc. Deferred Compensation
Plan for Nonemployee Directors (as Amended and Restated as of December 2, 1997)
(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 and any agreements contemplated thereby (the "Agreements")
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 60,000 additional 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
<PAGE> 1
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
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
-----------------
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
Deferred Compensation Plan for Nonemployee Directors (As Amended and Restated as
of December 2, 1997), 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.
/s/ Gordon D. Harnett /s/ Joseph P. Keithley
- ------------------------------------------------- ---------------------------
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
