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EXHIBIT (10gg)
BRUSH WELLMAN INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
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TABLE OF CONTENTS
PAGE
ARTICLE 1 ESTABLISHMENT OF THE PLAN............................... 1
ARTICLE 2 DEFINITIONS............................................. 1
2.1 Account................................................. 1
2.2 Board................................................... 1
2.3 Code.................................................... 1
2.4 Company................................................. 1
2.5 Compensation............................................ 1
2.6 Compensation Committee.................................. 1
2.7 Deferred Compensation................................... 2
2.8 Election Agreement...................................... 2
2.9 Employee................................................ 2
2.10 Participant............................................. 2
2.11 Plan.................................................... 2
2.12 Plan Administrator...................................... 2
2.13 Plan Year............................................... 2
2.14 Trust................................................... 2
2.15 Valuation Date.......................................... 2
ARTICLE 3 PARTICIPATION........................................... 2
3.1 Eligibility............................................. 2
3.2 Participation........................................... 2
ARTICLE 4 BENEFITS................................................ 3
4.1 Deferred Compensation................................... 3
4.2 Election Procedures..................................... 3
ARTICLE 5 ACCOUNTS................................................ 3
5.1 Participant Accounts.................................... 3
5.2 Investment Return....................................... 4
5.3 Valuation of Accounts................................... 4
ARTICLE 6 DISTRIBUTIONS........................................... 4
6.1 Termination of Employment............................... 4
6.2 Death.................................................. 4
ARTICLE 7 ADMINISTRATION.......................................... 5
7.1 Plan Administrator...................................... 5
7.2 Appointment of Administrative Committee................. 5
7.3 Powers of Plan Administrator............................ 5
7.4 Limitation of Liability................................. 5
7.5 Claims Procedures....................................... 6
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ARTICLE 8 MISCELLANEOUS........................................... 6
8.1 Unfunded Plan........................................... 6
8.2 Spendthrift Provision................................... 7
8.3 Employment Rights....................................... 7
8.4 Withholding of Taxes.................................... 7
8.5 Amendment or Termination................................ 7
8.6 No Fiduciary Relationship Created....................... 7
8.7 Release................................................. 7
8.8 No Warranty or Representation........................... 8
8.9 Construction............................................ 8
8.10 Governing Law........................................... 8
8.11 Counterparts............................................ 8
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BRUSH WELLMAN INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE 1
ESTABLISHMENT OF THE PLAN
Brush Wellman Inc., an Ohio corporation, hereby adopts the BRUSH
WELLMAN INC. EXECUTIVE DEFERRED COMPENSATION PLAN ("Plan") for the purpose of
providing deferred compensation to employees who are eligible under the terms
and conditions of the Plan, in accordance with the following terms and
conditions.
The Plan is intended to be a non-qualified deferred compensation
arrangement for a select group of management and highly compensated employees.
ARTICLE 2
DEFINITIONS
The following terms shall have the following meanings described in this
Article unless the context clearly indicates another meaning. All references in
the Plan to specific Articles or Sections shall refer to Articles or Sections of
the Plan unless otherwise stated.
2.1 Account means the record established for each Participant in
accordance with Section 5.1.
2.2 Board means the Board of Directors of Brush Wellman Inc.
2.3 Code means the Internal Revenue Code of 1986, as amended.
2.4 Company means Brush Wellman Inc., and any corporation in a
controlled group of corporations (under Code Section 414(b)) of which Brush
Wellman Inc. is a member, which, with the authorization of the Board adopts the
Plan for the benefit of its employees pursuant to resolution of its board of
directors.
2.5 Compensation means a Participant's taxable cash compensation
(reportable on Form W-2) for the Plan Year or scheduled pay period, but only to
the extent that such compensation exceeds the limit imposed on compensation
taken into account under the Brush Wellman Inc. Savings and Investment Plan by
reason of Code Section 401(a)(17) as determined by the Plan Administrator.
2.6 Compensation Committee means the Organization and Compensation
Committee of the Board or at any time that no such committee exists the Board.
2.7 Deferred Compensation means a Participant's Compensation allocated
to the
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Participant's Account in accordance with Section 4.1 of the Plan.
2.8 Election Agreement means the written agreement entered into by an
Employee, which shall be irrevocable, pursuant to which the Employee becomes a
Participant in the Plan and selects Deferred Compensation and the period over
which such amounts and investment return thereon will be paid.
2.9 Employee means, with respect to each Company adopting the Plan,
management and highly compensated employees.
2.10 Participant means an Employee or former Employee of the Company
who has met the requirements for participation under Section 3.1 and who is or
may become eligible to receive a benefit from the Plan or whose beneficiary may
be eligible to receive a benefit from the Plan.
2.11 Plan means the Brush Wellman Inc. Executive Deferred Compensation
Plan.
2.12 Plan Administrator means the administrator or administrative
committee designated pursuant to Article 7.
2.13 Plan Year means the period beginning on January 1 and ending on
December 31 of each year.
2.14 Trust means the trust that may be established pursuant to Article
8.
2.15 Valuation Date means the last business day of each calendar month.
ARTICLE 3
PARTICIPATION
3.1 Eligibility. An Employee shall be eligible to participate in the
Plan if he or she is an Employee designated as eligible by the Compensation
Committee. Individuals not specifically designated by the Compensation Committee
are not eligible to participate in the Plan.
3.2 Participation. An Employee shall become a Participant as of the
date he or she satisfies the eligibility requirements of Section 3.1 and
completes all administrative forms required by the Plan Administrator. A
Participant's participation in the Plan shall terminate upon termination of
employment or upon such other events as determined by the Compensation
Committee.
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ARTICLE 4
BENEFITS
4.1 Deferred Compensation. Subject to any limitations established by
the Compensation Committee or the Plan Administrator, a Participant may elect to
have his or her Compensation deferred in any amount not to exceed the
Participant's full Compensation less applicable tax withholding, and to have
that amount credited to his or her Account as Deferred Compensation. Deferred
Compensation shall be credited to a Participant's Account monthly. A Participant
shall at all times have a fully vested interest in his or her Account.
4.2 Election Procedures. (a) An Employee who is eligible to become a
Participant in the Plan must complete, sign and file an election form with the
Plan Administrator no later than 30 days following the date on which such
Employee first becomes eligible to participate in the Plan in order to become a
Participant in the Plan Year in which the Employee first becomes eligible.
(b) A Participant's Election Agreement shall be effective only
as to Compensation payable with respect to services rendered by the Participant
after the date the Election Agreement is completed, signed and filed with the
Plan Administrator.
(c) Each Participant shall specify on his or her Election
Agreement the Compensation the Participant elects to defer each Plan Year and
whether the Deferred Compensation plus investment return credited to such
Deferred Compensation will be paid in a single lump sum or in not more than five
annual installments upon termination of employment.
(d) A Participant can change his or her Election Agreement and
an eligible Employee who is not a Participant may become a Participant, as of
any January 1 by completing, signing and filing an Election Agreement with the
Plan Administrator not later than the preceding December 31. A Participant who
does not complete a new Election Agreement for a Plan Year will be deemed to
have elected not to have any Deferred Compensation for the Plan Year.
ARTICLE 5
ACCOUNTS
5.1 Participant Accounts. The Plan Administrator shall establish an
Account in the name of each Participant for all amounts attributable to Deferred
Compensation for each Plan Year for which the Participant has elected to defer
Compensation. A Participant's Account shall be maintained by the Plan
Administrator in accordance with the terms of this Plan until all of the
Deferred Compensation and investment return to which a Participant is entitled
has been distributed to a Participant or his or her beneficiary in accordance
with the terms of the Plan. A Participant shall be fully vested in his or her
Account at all times.
5.2 Investment Return. Each Account shall be deemed to bear an
investment return as if invested in the manner elected by the Participant from a
list of investment funds determined by
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the Compensation Committee from the date of crediting of Deferred Compensation
and income thereon through the date of complete distribution of the Account. The
Company shall have no obligation to actually invest funds pursuant to a
Participant's elections, and if the Company does invest funds, a Participant
shall have no rights to any invested assets other than as a general unsecured
creditor of the Company.
5.3 Valuation of Accounts. The value of an Account as of any Valuation
Date shall equal the amounts previously credited to such Account less any
payments debited to such Account plus the investment return deemed to be earned
on such Account in accordance with Section 5.2 through the Valuation Date.
ARTICLE 6
DISTRIBUTIONS
6.1 Termination of Employment. Upon termination of employment for any
reason other than death, a Participant's Account shall be distributed to the
Participant in a single lump sum payment or in not more than five annual
installments, as elected by the Participant on his or her Election Agreement for
the Plan Year. Payment will be made or begin on the business day coinciding with
or next following the sixtieth (60th) day after the Participant's termination of
employment or as soon thereafter as is administratively practicable. Installment
payments shall be calculated and recalculated annually by multiplying the
balance credited to the Participant's Account (including any increase or
decrease resulting from investment return) as of the most recent Valuation Date
by a fraction, the numerator of which is one and the denominator of which is the
remaining number of payments to be made to the Participant.
6.2 Death. If a Participant dies prior to termination of employment or
complete distribution of his or her Account, the amounts credited to his or her
Account will be distributed in the manner elected by the Participant on his or
her Election Agreement to the beneficiary named by the Participant on a
beneficiary designation form filed with the Company. Payment of a death benefit
will begin on the business day coinciding with or next following the sixtieth
(60th) day after a Participant's death or as soon thereafter as is
administratively practicable. The Participant may change the beneficiary
designation at any time by signing and filing a new beneficiary designation form
with the Plan Administrator. If for any reason no beneficiary is designated or
no beneficiary survives the Participant, the beneficiary shall be the
Participants estate. If the Participant designates a trust as beneficiary, the
Plan Administrator shall determine the rights of the trustee without
responsibility for determining the validity, existence or provisions of the
trust. Further, neither the Plan Administrator nor the Company shall have
responsibility for the application of sums paid to the trustee or for the
discharge of the trust.
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ARTICLE 7
ADMINISTRATION
7.1 Plan Administrator. The Company shall have the sole responsibility
for the administration of the Plan and is designated as Plan Administrator.
7.2 Appointment of Administrative Committee. The Company may assign its
duties as Plan Administrator to an Administrative Committee. The members of the
Administrative Committee shall be selected by the Board.
7.3 Powers of Plan Administrator. The Plan Administrator shall have the
full and exclusive power, discretion and authority to administer the Plan. The
determinations and decisions of the Plan Administrator are final and binding on
all persons. The Plan Administrator's powers shall include but shall not be
limited to, the power to:
(a) Maintain records pertaining to the Plan.
(b) Interpret the terms and provisions of the Plan, and to
construe ambiguities and correct omissions.
(c) Establish procedures by which Participants may apply for
benefits under the Plan and appeal a denial of benefits.
(d) Determine the rights under the Plan of any Participant
applying for or receiving benefits.
(e) Administer the claims procedure provided in this Article.
(f) Perform all acts necessary to meet the reporting and
disclosure obligations imposed by the Employee Retirement Income
Security Act of 1974 ("ERISA").
(g) Delegate specific responsibilities for the operation and
administration of the Plan to such employees or agents as it deems
advisable and necessary.
In the exercise of its powers, the Plan Administrator shall be entitled
to rely upon all tables, valuations, certificates and reports furnished by any
accountant or consultant and upon opinions given by any legal counsel in each
case duly selected by the Plan Administrator.
7.4 Limitation of Liability. The Plan Administrator, the Board (and its
members), the Company, and its officers shall not be liable for any act or
omission relating to their duties under the Plan, unless such act or omission is
attributable to their own willful misconduct or lack of good faith.
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7.5 Claims Procedures. (a) All claims under the Plan shall be directed
to the attention of the Plan Administrator. Any Participant or beneficiary whose
application for benefits or other claim under the Plan has been denied, in whole
or in part, shall be given written notice of the denial by the Plan
Administrator within sixty (60) days after the receipt of the claim. The notice
shall explain that the Participant or beneficiary may request a review of the
denial and the procedure for requesting review. The notice shall describe any
additional information necessary to perfect the Participant's or beneficiary's
claim and explain why such information is necessary. If a Participant or
beneficiary does not receive a written response to a claim within sixty (60)
days after receipt of the claim by the Plan Administrator, the claim will be
deemed to be denied.
(b) A Participant or beneficiary may make a written request to
the Plan Administrator for a review of any denial of claims under this Plan. The
request for review must be in writing and must be made within sixty (60) days
after the mailing date of the notice of denial or the deemed denial. The request
shall refer to the provisions of the Plan on which it is based and shall set
forth the facts relied upon as justifying a reversal or modification of the
determination being appealed.
(c) A Participant or beneficiary who requests a review of
denial of claims in accordance with this claims procedure may examine pertinent
documents and submit pertinent issues and comments in writing. A Participant or
beneficiary may have a duly authorized representative act on his or her behalf
in exercising his or her right to request a review and any other rights granted
by this claims procedure. The Plan Administrator shall provide a review of the
decision denying the claim within sixty (60) days after receiving the written
request for review. If a Participant or beneficiary does not receive a written
response to a request for a review within the foregoing time limit, such request
will be deemed to be denied. A decision by the Plan Administrator for review
shall be final and binding on all persons.
ARTICLE 8
MISCELLANEOUS
8.1 Unfunded Plan. (a) The Plan shall be an unfunded plan maintained by
the Company for the purpose of providing benefits for a select group of
management or highly compensated employees. The Company is not required to set
aside, earmark or entrust any fund or money with which to pay its obligations
under this Plan or to invest in any particular investment vehicle and may change
investments of Company assets at any time.
(b) The Company may establish a Trust to hold property that
may be used to pay benefits under the Plan. The Trust shall be intended to be a
grantor trust, within the meaning of Section 671 of the Code, of which the
Company is the grantor, and the Plan is to be construed in accordance with that
intention. Notwithstanding any other provision of this Plan, the assets of the
Trust will remain the property of the Company 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 assets
of the Trust or any security interest or other right superior to the rights of a
general creditor of the Company.
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(c) All benefits under this Plan shall be paid by the Company
from its general assets and/or the assets of the Trust, which assets shall, at
all times, remain subject to the claims of the Company's creditors.
(d) Neither Participants, their beneficiaries nor their legal
representatives shall have any right, other than the right of an unsecured
general creditor, against the Company in respect of any portion of a
Participant's Account and shall have no right, title or interest, legal or
equitable, in or to any asset of the Company or the Trust.
8.2 Spendthrift Provision. The Plan shall not in any manner be liable
for or subject to the debts or liabilities of any Participant or beneficiary. No
benefit or interest under the Plan is subject to assignment, alienation, pledge
or encumbrance, whether voluntary or involuntary, and any purported or attempted
assignment, alienation, pledge or encumbrance of benefits shall be void and will
not be recognized by the Company.
8.3 Employment Rights. The existence of the Plan shall not grant a
Participant any legal or equitable right to continue as an Employee nor affect
the right of the Company to discharge a Participant.
8.4 Withholding of Taxes. To the extent required by applicable law, the
Company will withhold from Compensation and/or Deferred Compensation and any
payment hereunder all taxes required to be withheld for federal, state or local
government purposes.
8.5 Amendment or Termination. Brush Wellman Inc. reserves the right to
amend, modify, suspend or terminate the Plan at any time without prior notice by
action of its Board; provided, however, that no such action may deprive a
Participant of his rights to receive a benefit pursuant to the Plan with respect
to Compensation elected to be deferred prior to such action, determined as
though such benefit were subject to Section 411 of the Internal Revenue Code of
1986, as in effect on September 14, 1999. A Company affiliated with Brush
Wellman Inc. which has adopted this Plan may terminate its participation in the
Plan at any time by action of its board of directors.
8.6 No Fiduciary Relationship Created. Nothing contained in this Plan,
and no action taken pursuant to the provisions of this Plan, shall create or be
deemed to create a fiduciary relationship between the Company or Plan
Administrator and any Participant, beneficiary or any other person.
8.7 Release. Any payment to any Participant or beneficiary in
accordance with the provisions of this Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Plan Administrator, the Company and
any of their officers, directors, shareholders, employees or agents.
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8.8 No Warranty or Representation. The Company makes no warranty or
representation regarding the effect of deferrals made or benefits paid under
this Plan for any purpose.
8.9 Construction. Words used in the masculine shall apply to the
feminine where applicable; and wherever the context of the Plan dictates, the
plural shall be read as the singular and the singular as the plural.
8.10 Governing Law. To the extent that Ohio law is not preempted by
ERISA, the provisions of the Plan shall be governed by the laws of the State of
Ohio.
8.11 Counterparts. This Plan may be signed in any one or more
counterparts each of which together shall constitute one instrument.
IN WITNESS WHEREOF, the Company has executed this Plan this ____ day of
September, 1999, effective September 14, 1999.
BRUSH WELLMAN INC.
By:_________________________
Name:____________________
Title:___________________
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