1
Exhibit 10hh
TRUST AGREEMENT
FOR
BRUSH WELLMAN INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
2
TABLE OF CONTENTS
Page
Recitals 1
Section 1 - Definitions 1
Section 2 - Trust Fund 3
Section 3 - Separate Accounts 4
Section 4 - Change of Control 4
Section 5 - Payments to Participants and Beneficiaries 4
Section 6 - Trustee Responsibility Regarding Payments to
Participants When Corporation Insolvent 6
Section 7 - Payments to Corporation 8
Section 8 - Additional Powers, Duties, and Immunities of the Trustee 9
Section 9 - Accounting by Trustee 14
Section 10 - Responsibility of Trustee 14
Section 11 - Compensation and Expenses of Trustee 15
Section 12 - Tenure and Succession of Trustees 15
Section 13 - Amendment and Termination 17
Section 14 - Amendments to Plan 17
Section 15 - General Provisions 18
Exhibits
3
TRUST AGREEMENT
FOR
BRUSH WELLMAN INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
THIS AGREEMENT made this _______ day of ______________, 1999
by and between BRUSH WELLMAN INC., an Ohio corporation (the "Corporation") and
FIFTH THIRD BANK (together with any successor designated in accordance with
Section 12 of this Agreement, the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Corporation has adopted the Brush Wellman Inc.
Executive Deferred Compensation Plan, (the "Plan"), a copy of which is attached
as Exhibit A hereto; and
WHEREAS, the Corporation has incurred or expects to incur
liability under the terms of the Plan with respect to the individuals
participating in the Plan;
WHEREAS, the Corporation wishes to establish a trust (the
"Trust") and to contribute to the Trust, assets that shall be held therein
subject to the claims of the Corporation's creditors in the event of the
Corporation's Insolvency, as herein defined, until paid to Plan Participants and
their Beneficiaries in such manner and at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Plan as unfunded for purposes of Title I of the Employee Retirement Income
Security Act of 1974; and
WHEREAS, it is the intention of the Corporation to make
contributions to the Trust to provide itself with a source of funds to assist it
in the meeting of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following words and phrases
shall have the following meanings:
4
(a) "Beneficiary" shall mean a "Beneficiary" as determined
pursuant to the Plan, if the Participant (as hereinafter defined) is deceased,
or a permitted assignee of a Participant as determined pursuant to the Plan.
(b) "Board" shall mean the Board of Directors of the
Corporation.
(c) "Change of Control" shall mean, with respect to the
Corporation, that if subsequent to [___________, 1999] any of the following
events shall occur:
(1) The Board 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 [____________, 1999]. 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.
(2) 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 Corporation without having first complied
with Section 1701.831 of the Ohio Revised Code (dealing with control share
acquisitions).
(3) The Board shall at any time determine in the good faith exercise of
its judgment that (A) any particular actual or proposed accumulation of shares
of the Corporation, tender offer for shares of the Corporation, 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 of Control falling within (1) above or (2) above, and (B) it is in
the best interests of the Corporation and its shareholders, and will serve the
intended purposes of this Agreement, if such transaction or event or series of
transactions or events is deemed to be a Change of Control.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended, or any successor provision thereto.
(e) "Committee" shall mean the Committee and the Committee's
delegate(s) pursuant to the Plan.
(f) "Insolvent" or "Insolvency" shall mean that the
Corporation is unable to pay its debts as they become due or is subject to a
pending proceeding as a debtor under the United States Bankruptcy Code, as now
in force or hereafter amended.
(g) "Participant" shall mean a "Participant" as defined in the
Plan and for whom an account has been established pursuant to Section 3 of this
Agreement.
-2-
5
(h) "Plan" shall mean the Brush Wellman Inc. Executive
Deferred Compensation Plan, as the same shall be amended from time to time.
Any capitalized term used herein as a defined term that is not
defined herein shall have the meaning set forth in the Plan.
SECTION 2. TRUST FUND.
(a) The Corporation shall make an initial contribution to the
Trust, which shall become principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Agreement.
(b) The Trust hereby established shall be revocable by the
Corporation prior to a Change of Control; it shall become irrevocable upon a
Change of Control. The Trust hereby established shall be amended only as
provided in Section 13 of this Agreement.
(c) The Trust is intended to be a grantor trust, of which the
Corporation is the grantor, within the meaning of subpart E, part I, subchapter
J, chapter 1, subtitle A of the Code, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon,
shall be held in trust separate and apart from other funds of the Corporation
and shall be used exclusively for the uses and purposes of Participants and
Beneficiaries and general creditors as herein set forth. Participants and
Beneficiaries shall have no preferred claim on or any beneficial ownership or
security interest in any assets of the Trust. Any rights created under the Plan
and this Agreement shall be mere unsecured contractual rights of Participants
and their Beneficiaries against the Corporation. Any assets held by the Trust
will be subject to the claims of the Corporation's general creditors under
federal and state law in the event of Insolvency.
(e) The Corporation, in its sole discretion, may at any time
or from time to time make additional deposits to the Trust of cash or other
property that is acceptable to the Trustee to augment the principal of any
separate account hereunder to be held, administered and disposed of by Trustee
as provided in this Agreement. Neither the Trustee nor any Participant or
Beneficiary shall have any right to compel such additional deposits.
-3-
6
SECTION 3. SEPARATE ACCOUNTS.
The Trustee shall create and maintain one or more separate
accounts in the name of each Participant named in Exhibit 3 attached hereto and
made a part of this Agreement and any subsequent addition(s) to such Exhibit and
shall allocate to such separate account(s) the cash or other property
contributed in respect of such Participant as indicated in such Exhibit or
addition to such Exhibit. Each such separate account shall be maintained and
administered separately, and credited and debited, as herein provided, but all
such separate accounts may be invested by the Trustee as a single trust fund.
SECTION 4. CHANGE OF CONTROL.
If a Change of Control occurs (i) the Corporation shall
immediately deliver to the Trustee, with a copy to each Participant or
Beneficiary, a written notice to that effect authorized by the Committee and
signed by two officers of the Corporation, or (ii) a Participant or Beneficiary,
may, with a copy to the Corporation, notify the Trustee in writing to that
effect. The Trustee may conclusively rely on any such notification from the
Corporation. If the Trustee receives such notification from a Participant or
Beneficiary and not from the Corporation, the Trustee shall immediately notify
the Corporation and the Board thereof. If the Corporation does not within
fifteen (15) business days after receipt of such notification from the Trustee
deliver to the Trustee written objection thereto, a Change of Control shall be
deemed to have occurred for purposes of this Agreement; if the Trustee timely
receives such written objection from the Corporation, the Trustee shall
forthwith, in its sole discretion, determine whether a Change of Control has
occurred, and if the Trustee determines that a Change of Control has occurred, a
Change of Control shall be deemed to have occurred for purposes of this
Agreement; and during the period in which the Trustee is determining whether a
Change of Control has occurred, the Trustee shall administer this Agreement as
though a Change of Control had occurred, except that the Trustee shall make no
payments to Participants and Beneficiaries from the Trust other than as provided
in Section 5(c) of this Agreement. The determination of the Trustee upon any
such objection shall be final and binding for purposes of this Agreement. In
making such determination, the Trustee may in its sole discretion consult with
independent legal counsel and shall incur no liability for acting or refraining
from acting in accordance with the advice of such counsel. Except as otherwise
provided in this Section 4, the Trustee shall have no independent obligation to
make a determination as to the occurrence of a Change of Control.
SECTION 5. PAYMENTS TO PARTICIPANTS AND BENEFICIARIES.
(a) The Corporation shall provide the Trustee with a copy of
each amendment to the Plan within a reasonable period after the adoption
thereof. The Corporation shall maintain adequate records identifying its
obligations to each Participant and Beneficiary under the Plan. At any time
reasonably requested by the
-4-
7
Trustee after a Change of Control, the Corporation shall provide the Trustee
with copies of such records.
(b) After a Change of Control, and provided that the
Corporation is not then Insolvent, upon receipt by the Trustee of both (i) a
certificate signed by the Participant or Beneficiary, substantially in the form
of Exhibit 5(b)(1) attached hereto and made a part of this Agreement, and (ii)
an affidavit executed by the Participant or Beneficiary in the form of Exhibit
5(b)(2) attached hereto and made a part of this Agreement, the Trustee shall
make a payment to the Participant or Beneficiary from the assets of his separate
account(s) under the Trust in an amount equal to the lesser of the amount
specified in such certificate or the amount of assets then held in his separate
account(s) under the Trust. Upon receipt of an affidavit in the form of Exhibit
5(b)(2) attached hereto and made a part of this Agreement, the Trustee shall
forthwith forward a copy of the affidavit to the Corporation. [Whenever the
Trustee pays any amount to a Participant or Beneficiary pursuant to this Section
5(b) on a date later than the date on which the Corporation was obligated to pay
the amount under the Plan, the Trustee shall also pay to the Participant or
Beneficiary an additional amount, subject to the sufficiency of the assets of
his separate account(s), as interest on the amount so paid. The interest shall
be paid for the period from the date on which the Corporation was obligated to
pay the amount through the date on which the Trustee pays the amount and shall
be calculated at the rate borne by United States Treasury Bills of ninety (90)
days maturity as determined from the Treasury auction immediately preceding the
date of such payment.] The Trustee shall use its reasonable best efforts to make
such payment within ten business days following satisfaction of the conditions
for such payment under this Section 5(b), or, if later than ten business days
after the satisfaction of the conditions for such payment under this Section
5(b), as soon as reasonably practicable.
(c) Provided that the Corporation is not then Insolvent, upon
receipt by the Trustee of a written direction from the Committee, the Trustee
shall make a payment to the Participant of Beneficiary from the assets of his
separate account(s) under the Trust in an amount equal to the lesser of the
amount specified in such written direction or the amount of assets then held in
his separate account(s) under the Trust. Such payment shall be by bank check or
cashier's check and shall be transmitted to the Participant or Beneficiary
together with a letter substantially in the applicable form of Exhibit 5(c)
attached hereto and made a part of this Agreement signed by an officer of the
Trustee. The Trustee shall use its reasonable best efforts to make such payment
within ten business days following satisfaction of the conditions for such
payment under this Section 5(c), or, if later than ten business days after the
satisfaction of the conditions for such payment under this Section 5(c) , as
soon as reasonably practicable.
(d) The Trustee shall, after consultation with the Committee,
make such provision as it considers necessary or appropriate for the withholding
of any federal, state, and local taxes that may be required to be withheld in
connection with and/or from any payment under Section 5(b) of this Agreement.
The Corporation shall make such provision as it considers necessary or
appropriate for the withholding of any federal,
-5-
8
state, and local taxes that may be required to be withheld in connection with
any payment under Section 5(c) of this Agreement, but the Committee may in the
written notice to the Trustee directing payment instruct the Trustee to withhold
such taxes and transmit such taxes to the appropriate authority.
(e) If the amount of assets of his separate account(s) under
the Trust is not sufficient to provide for full payment to the Participant or
Beneficiary as specified in Section 5(b) of this Agreement or Section 5(c) of
this Agreement, the Corporation shall make the balance of such payment as
provided in the Plan and the Trustee shall have no obligation with respect
thereto.
(f) If any payment to the Participant or Beneficiary referred
to in Section 5(b) of this Agreement or Section 5(c) of this Agreement exceeds
that to which the Participant or Beneficiary is entitled pursuant to the Plan,
the Participant or Beneficiary shall be obligated to repay the Corporation with
respect to the excess, but the Trustee shall have no obligation with respect to
the excess.
(g) Receipt by a Participant or Beneficiary of any payment or
distribution from the Trust shall be deemed to constitute agreement by the
Participant or Beneficiary to the terms and conditions required for the receipt
of benefits pursuant to the Plan.
(h) Notwithstanding any other provision herein to the
contrary, in no circumstances shall the Trustee be liable to any Participant or
Beneficiary for any insufficiency of the Trust assets (or his separate
account(s)) to discharge payments hereunder, rather, the liability for all such
payments shall be and remain the ultimate responsibility of the Corporation, and
if the assets of any Participant's separate account(s) under the Trust are
insufficient at any time to make payments to such Participant or Beneficiary in
accordance with the provisions of the Plan, the Corporation shall make the
balance of any such payment as it falls due.
SECTION 6. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO PARTICIPANTS WHEN
CORPORATION INSOLVENT.
(a) At all times during the continuance of this Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of the Corporation under federal and state law as set forth below.
(1) The Board and the highest ranking officer of the Corporation
shall have the duty to inform the Trustee in writing of the
Corporation's Insolvency. If a person claiming to be a
creditor of the Corporation alleges in writing to the Trustee
that the Corporation has become Insolvent, the Trustee shall
determine whether the Corporation is Insolvent and, pending
such determination, the Trustee shall discontinue payment of
benefits to Participants or their Beneficiaries.
-6-
9
(2) Unless the Trustee has actual knowledge of the Corporation's
Insolvency, or has received notice from the Corporation or a
person claiming to be a creditor alleging that the Corporation
is Insolvent, the Trustee shall have no duty to inquire
whether the Corporation is Insolvent. The Trustee may in all
events rely on such evidence concerning the Corporation's
solvency as may be furnished to the Trustee and that provides
the Trustee with a reasonable basis for making a determination
concerning the Corporation's solvency.
(3) If at any time the Trustee has determined that the Corporation
is Insolvent, the Trustee shall discontinue payments to
Participants or their Beneficiaries and shall hold the assets
of the Trust for the benefit of the Corporation's general
creditors. Nothing in this Agreement shall in any way diminish
any rights of Participants or their Beneficiaries to pursue
their rights as general creditors of the Corporation with
respect to benefits due under the Plan or otherwise.
(4) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with Section
5 of this Agreement only after the Trustee has determined that
the Corporation is not Insolvent (or is no longer Insolvent).
(b) If the Trustee discontinues payments of benefits from the
Trust pursuant to Section 6(a) of this Agreement and subsequently resumes such
payments, subject to the sufficiency of each Participant's separate account(s)
to make required payments to such Participant or Beneficiary, the first payment
following such discontinuance shall include the aggregate amount of all payments
which would have been made to the Participant or Beneficiary in accordance with
the provisions of the Plan, during the period of such discontinuance, less the
aggregate amount of payments made to the Participant or Beneficiary by the
Corporation in lieu of the payments provided for hereunder during any such
period of discontinuance.
-7-
10
SECTION 7. PAYMENTS TO CORPORATION.
(a) Except as provided in Sections 7(b), 7(c), 13(a), or 13(b)
hereof, the Corporation shall have no right or power to direct the Trustee to
pay any assets of the Trust to the Corporation.
(b) Upon the written direction of the Committee with respect
to the separate account(s) of a Participant or Beneficiary and delivered to the
Trustee prior to a Change of Control, the Trustee shall pay to the Corporation
all or such portion of any assets of such separate account(s) of the Participant
or Beneficiary then in the Trust as may be specified in such direction.
(c) Within ten business days after payment, if any, in full by
the Corporation or by the Trustee to the Participant or Beneficiary pursuant to
Section 5 of this Agreement, of all benefits to which the Participant or
Beneficiary is entitled under the Plan, as determined pursuant to this Section
7(c), the Trustee shall distribute to the Corporation all of the assets, if any,
of the separate account(s) of the Participant or Beneficiary held by the Trust.
The Trustee shall make such payment to the Corporation only upon receipt by the
Trustee of a written request from the Corporation authorized by the Committee
and signed by two officers of the Corporation and after it has made a
determination pursuant to this Section 7(c) that the Participant or Beneficiary
has received payment in full of all amounts to which he is or may be entitled
(or is no longer and will not become entitled to any amounts) under the Plan.
Together with any request for payment with respect to a Participant or
Beneficiary, the Corporation shall provide the Trustee with copies of the
Corporation's books and records identifying the Corporation's obligations to the
Participant or Beneficiary under the Plan, and such other evidence of the
Corporation's satisfaction of the Corporation's obligations under the Plan as
the Corporation shall desire. Upon receipt of the Corporation's request, the
Trustee shall notify the Participant or Beneficiary that it is considering the
Corporation's request and shall provide the Participant or Beneficiary with a
copy of all documents and information submitted by the Corporation. The
Participant or Beneficiary may object to the Corporation's request in writing
and may submit any information or arguments to support his position within
thirty (30) days of such notice or such extended time as the Trustee may, upon
application, grant. If the Participant or Beneficiary objects, the Trustee shall
so advise the Corporation and afford the Corporation a reasonable opportunity to
respond. If there is a disputed request, the Trustee shall determine in its sole
discretion whether the Participant or Beneficiary is or may be entitled to any
amounts under the Plan. In making its determination, the Trustee shall adhere to
the following: The Corporation shall have the burden of proving its claim by
clear and convincing evidence, and the Trustee shall resolve any reasonable
doubt in favor of the Participant or Beneficiary. In making its decision, the
Trustee shall disregard any amendment or modification to the Plan or an Option
Agreement adopted on or after a Change of Control that purports to decrease
benefits with respect to the Participant or Beneficiary. The decision of the
Trustee upon any such request shall be final and binding for purposes of this
Agreement. Notwithstanding the foregoing, if the Trustee
-8-
11
determines in its sole discretion that, in the event of any disputed request as
described in this Section 7(c), it is unable to determine the proper party to
which assets are payable, the Trustee may thereupon apply to a court of
competent jurisdiction, including by way of an interpleader action, for a
judicial determination of the proper payee. The Trustee shall have no liability
with respect to any such action, other than for the payment of assets in
accordance with such judicial determination.
SECTION 8. ADDITIONAL POWERS, DUTIES, AND IMMUNITIES OF THE TRUSTEE.
(a) In the administration of the Trust, the Trustee shall,
subject to Section 8(b), have the following additional powers, duties, and
immunities:
(i) The Trust assets, including any income accumulated and added to
principal, shall be invested by the Trustee with the purpose of the
preservation of principal and liquidity. The rate of return on investments,
while important, shall not take precedence over safety of principal.
Notwithstanding the two immediately preceding sentences, the Trust assets may
be invested by the Trustee in any Designated Property, and the Corporation or
the Committee shall provide timely written notice to the Trustee of the
property that is from time to time Designated Property under the Plan. The
Trustee shall have the powers:
(A) to receive, hold, manage, improve, repair, sell, lease,
pledge, mortgage, exchange or otherwise dispose of all or any part of
the Trust assets upon such terms, prices and conditions as it deems
advisable;
(B) to invest and reinvest the Trust assets in any property or
undivided interest therein, wherever located, including bonds, notes
(secured or unsecured), stock of corporations, time and savings
deposits (including savings deposits and certificates of deposit in
the Trustee or its affiliates if such deposits bear a reasonable rate
of interest), real estate or any other interest therein, shares in
investment trusts and stock in mutual funds and investment companies
(including investment trusts, mutual funds, and investment companies
to which the Trustee or an affiliate thereof may serve as investment
advisor, sponsor, underwriter, manager, administrator, distributor,
custodian, transfer agent, or in any other capacity for which it may
receive a fee), and annuities and other policies of insurance, upon
such terms, prices and conditions as it deems advisable, without
being restricted by any statute or rule of law governing the
investments in which a trustee may invest funds held by it, and
without regard to the proportion which an investment may bear to the
entire amount of the Trust assets or any separate account under the
Trust;
-9-
12
(C) with the prior, written approval of the Committee, to
borrow money upon such terms and conditions and for such purposes as
it deems advisable;
(D) to vote in person or by proxy the stocks, securities, or
other investments which it holds as Trustee; to execute and deliver
proxies, powers of attorney, and other agreements which it deems
advisable; to exchange the securities of any corporation or issuing
authority for other securities upon such terms and conditions as it
deems advisable; to consent to or oppose any corporate action; to pay
all assessments and subscriptions as it deems advisable; to exercise
options and, in general, to exercise in respect of all stocks,
securities, or other investments which it holds as Trustee all
rights, powers and privileges as might be exercised by an individual
in his own right;
(E) to execute such instruments, deeds, leases, mortgages,
contracts, agreements, assignments, transfers, bills of sale, and
other documents of any kind, as it deems advisable; and
(F) to retain uninvested cash in the Trust either in its
banking department or elsewhere to meet contemplated payments or
transfers from the Trust, or temporarily awaiting investment, without
liability for interest thereon.
(ii) The Trustee is empowered to register securities, and to take and
hold title to other property, in the name of the Trustee or in the name of a
nominee without disclosing the Trust. Securities also may be held in bearer
form and may be held in bulk with certificates of the same class and issuer
which are assets of other fiduciary accounts. The Trustee shall be responsible
for any wrongful acts of any nominee of the Trustee.
(iii) The Trustee is empowered to employ such agents and attorneys as
the Trustee shall deem advisable and to determine and pay the reasonable
compensation of any agents and attorneys so employed, without diminution of
the compensation of the Trustee. Unless paid by the Corporation, such
compensation shall be charged against the separate accounts from time to time
held under the Trust in such proportions as the Trustee shall deem equitable.
The Trustee shall not be liable for any neglect, omission, or wrong doing of
any such agent or attorney if reasonable care is exercised in the selection of
such agent or attorney.
(iv) The Trustee is empowered to take all actions necessary or
advisable in order to collect any insurance, annuity, or other benefits or
payments of which the Trustee is the designated beneficiary. The Trustee
further is empowered to enforce, release, compromise, and settle any and all
claims in favor of or against the Trust or
-10-
13
any separate account under the Trust, whether or not such claims are in
litigation, upon such terms and conditions as the Trustee shall deem advisable.
(v) The Trustee is authorized to segregate and hold separately any part
or all of the Trust assets from time to time allocable to the separate
accounts then existing or to hold any part or all of the Trust assets as a
single commingled fund and allocate undivided interests in the same among the
separate accounts then existing.
(vi) The Trustee is empowered to pay out of the Trust, as a general
charge thereon, or in the sole discretion of the Trustee as a charge to one or
more affected separate accounts any and all taxes of whatsoever nature
assessed against the Trust; provided, however, that, if the Corporation shall
notify the Trustee in writing that in the opinion of its counsel any such tax
is not lawfully assessed, the Trustee, if so requested by the Corporation,
shall contest the validity of such tax in any manner deemed appropriate by the
Corporation or its counsel. The word "taxes", as used herein, shall be deemed
to include any interest or penalties assessed in respect to such taxes. Unless
the Trustee first shall have been indemnified to its satisfaction by the
Corporation, however, the Trustee shall not be required to contest the
validity of any tax, to institute, maintain, or defend against any other
action or proceeding, or to incur any other expense in connection with the
Trust, except to the extent that the Trust is sufficient therefor.
(vii) The Trustee shall have all other powers and duties conferred or
imposed on trustees by law which are consistent with the provisions of this
instrument and such further powers as may be required to give effect to the
powers and duties of the Trustee expressly set forth in this instrument.
(viii) Notwithstanding anything to the contrary in this Section or any
other provision of this Agreement or any power granted to the Trustee pursuant
to law: The Trustee shall have no power to invest any of the Trust assets in
securities or obligations of the Corporation or any subsidiary or affiliate of
the Corporation nor any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within the meaning of
Section 301.7701-2 of the Procedure and Administrative Regulations promulgated
pursuant to the Code. If an insurance policy or annuity contract is held as an
asset of the Trust, the Trustee shall have no power to name a beneficiary of
such policy or contract other than the Trust, to assign the policy or contract
(as distinct from conversion of the policy or contract to a different form)
other than to a successor Trustee, or to loan to any person the proceeds of
any borrowing against or withdrawal from such policy or contract.
(ix) The Trustee shall not be required to furnish bond, nor shall the
Trustee be required to obtain leave or confirmation from any court before
exercising any of the powers or performing any of the duties of the Trustee;
but the Trustee at all times shall be obligated to act in good faith and to
exercise reasonable prudence.
-11-
14
(x) No person dealing with the Trustee shall be obligated to inquire
into the Trustee's powers with respect to any action which the Trustee may
propose to take, and the receipt of the Trustee for any payment made or
property transferred to the Trustee by any person shall constitute a complete
acquittance to such person for such payment or property and its proper
application.
(b) During periods prior to a Change of Control, the Committee
shall have the following powers and authority with respect to the assets of the
Participant's or Beneficiary's separate account(s) held in the Trust:
(i) The Committee may direct the Trustee to hold the assets held in the
Trust as one fund in accordance with and for the purposes hereinafter set
forth in this Section 8(b) or from time to time to divide and redivide the
assets held in the Trust, for such purposes, into two or more funds, of which
the first shall be designated as "Investment Fund A" and each other shall be
designated by another letter of the alphabet. For the purposes of this Section
8(b), the Trust or, in the event of its division as provided in this Section
8(b), each separate Investment Fund, shall hereinafter be referred to as an
"Investment Fund". At the time of the first division and of each redivision,
the Committee may specify the part of the assets held in the Trust to be
allocated to each Investment Fund, and the Committee may reallocate all or any
part of such assets between or among the Investment Funds from time to time.
For all purposes other than investment purposes (except as otherwise provided
in this Agreement with respect to separate accounts), such assets shall be
held as a single trust fund.
(ii) From time to time the Committee may designate one or more persons,
or may designate itself, to act as an "investment manager" hereunder by
written notice to the Trustee, with authority to direct the investment and
reinvestment of the Investment Fund or Funds specified in such notice. The
Trustee may rely upon any such appointment continuing in effect until it
receives written notice from the Committee of its revocation. The Committee
may by similar notice modify or terminate such designation and authority from
time to time. So long as, and to the extent that, any such designation is in
effect, the Trustee shall invest, reinvest and retain the Investment Fund
assigned to an investment manager and the Trustee shall exercise its
investment powers set forth in Section 8(a) (including the powers set forth in
clause (i)(D) thereof) in accordance with instructions received from such
investment manager. So long as, and to the extent that, no such designation is
in effect, the Trustee shall invest, reinvest and retain, in accordance with
its sole discretion, that part of the Trust not assigned to an investment
manager.
(iii) All instructions from an investment manager to the Trustee shall
be in writing (or by telephone or telegraph confirmed in writing) and shall be
complete in all reasonable and necessary details. The Trustee shall have no
duty to question such instructions nor shall the Trustee incur any liability
for following such instructions. The Corporation shall indemnify the Trustee,
in its capacity as Trustee and
-12-
15
individually, from any liability with regard to following such instructions from
an investment manager or from refraining from action in the absence of
instructions from a duly appointed investment manager. Without limitation of the
generality of the preceding sentence, the Corporation shall indemnify and hold
the Trustee harmless against any and all actions, claims, demands, liabilities,
losses, damages or expenses of whatsoever kind and nature, whenever arising,
which arise from the failure by the Trustee to pay for property purchased by the
investment manager for the Trust, by reason of the insufficiency of funds in the
Trust.
(iv) The Committee shall regularly notify each designated investment
manager of the anticipated requirements for disbursements from the Investment
Fund or Funds under his or its direction, and shall direct the Trustee to hold
cash funds uninvested in such amounts and for such periods of time as may
appear to be reasonably necessary to meet cash requirements. Notwithstanding
the appointment of an Investment Manager, the Trustee is authorized in its
sole discretion to invest and reinvest the cash forming a part of any
Investment Fund, which it has not been directed to hold uninvested, in such
certificates of deposit, variable demand notes, corporate money market
instruments such as commercial paper and U.S. Treasury bills and notes,
repurchase agreements or other evidences of indebtedness which are payable on
demand or which generally have a maturity date of not more than fifteen (15)
months from the time of acquisition and including units of any common trust
fund holding any such investments administered by the Trustee, as the Trustee
in its sole discretion deems suitable for the Investment Fund. The Trustee
does not guarantee any such obligation, deposit, note, or other investment
made by it from loss, depreciation, or diminution in value.
(v) Payment of the cost of the acquisition, sale or exchange of any
security or other property for an Investment Fund shall be charged to such
Investment Fund.
(vi) The investment manager shall receive such compensation as may be
agreed upon by it and the Committee, which compensation shall be paid by the
Corporation.
(vii) If the Committee appoints an investment manager, the Trustee
shall be relieved of its rights, duties and obligations hereunder to the
extent delegated to such investment manager in accordance with this Agreement.
(viii) All actions (and inaction) by the Committee pursuant to this
Section 8(b) shall be in a nonfiduciary capacity (except with respect to any
fiduciary duties to the Corporation and its shareholders).
SECTION 9. ACCOUNTING BY TRUSTEE.
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
done, including such specific records as shall be agreed upon in writing between
the Committee and the
-13-
16
Trustee. All such accounts, books and records shall be open to inspection and
audit at all reasonable times by the Committee, the Corporation, and, after a
Change of Control and with respect to his separate account(s) only, by a
Participant or his Beneficiary. Within sixty (60) days following the close of
each fiscal quarter of the Corporation and within sixty (60) days after the
resignation or removal of the Trustee, the Trustee shall deliver to the
Committee, and after a Change of Control and with respect to his separate
account(s) only, to each Participant or his Beneficiary, a written account of
its administration of the Trust during such quarter or during the period from
the close of the last preceding quarter to the date of such resignation or
removal, setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at the end of
such quarter or as of the date of such resignation or removal, as the case may
be. In the absence of the filing in writing with the Trustee by the Committee of
exceptions or objections to any such account within 60 days, the Committee, or
the Participant or his Beneficiary with respect to his separate account(s) after
a Change of Control, shall be deemed to have approved such account, and in such
case, or upon the written approval by the Committee, or the Participant or his
Beneficiary with respect to his separate account(s) after a Change of Control,
of any such account, the Trustee shall be released, relieved and discharged with
respect to all matters and things set forth in such account as though such
account had been settled by the decree of a court of competent jurisdiction.
SECTION 10. RESPONSIBILITY OF TRUSTEE.
(a) The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent corporate
trustee acting in a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like aims; provided,
however, that the Trustee shall incur no liability to anyone for any action
taken pursuant to a direction, request, or approval contemplated by and
complying with the terms of this Agreement.
-14-
17
(b) The Trustee shall not be required to undertake or to
defend any litigation on behalf of the Trust, unless it be first indemnified by
the Corporation against its prospective costs, expenses and the liability, and
the Corporation hereby agrees to indemnify Trustee for such costs, expenses, and
liability. If the Corporation does not make payment to the Trustee of an agreed
indemnity for such costs, expenses, and liabilities in a reasonably timely
manner, the Trustee may obtain payment from the Trust to the extent permitted
under applicable law and in accordance with Section 11.
(c) The Trustee may consult with legal counsel (who may also
be counsel generally or specially for the Trustee or the Corporation or their
affiliates) with respect to any of its duties or obligations hereunder, and
shall be fully protected in acting or refraining from acting in accordance with
the advice of such counsel.
(d) The Trustee may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction or request furnished
to it hereunder and reasonably believed by it to be genuine and to have been
signed or presented by the Corporation, the Committee, or a Participant or
Beneficiary.
SECTION 11. COMPENSATION AND EXPENSES OF TRUSTEE.
The Trustee shall be entitled to receive reasonable
compensation for its services in accordance with its published fee schedule as
in effect from time to time. The Trustee shall be entitled to receive its
reasonable expenses incurred with respect to the administration of the Trust,
including fees and expenses incurred by the Trustee pursuant to this Agreement
(including attorney's fees and court costs). Such compensation and expenses
shall be paid by the Corporation. If the Corporation fails to pay such
compensation and expenses within thirty (30) business days after written request
therefor has been made by the Trustee, such compensation and expenses may be
paid from the assets of the Trust and charged against the separate accounts from
time to time held under the Trust in such proportions as the Trustee shall deem
equitable, but the Corporation shall remain liable therefor and the Trustee
shall take reasonable action, including, but not limited to, institution of
legal action, to collect such compensation and expenses and upon such collection
shall credit the separate accounts under the Trust to which such compensation
and expenses were charged with the net proceeds of such collection in such
proportions as the Trustee deems equitable. The expenses incurred by the Trustee
in connection with any reasonable action required to obtain payment of such
compensation or expenses shall constitute additional expenses for which the
Trustee shall be entitled to reimbursement under this Section.
SECTION 12. TENURE AND SUCCESSION OF TRUSTEES.
(a) Each Trustee from time to time serving under this
Agreement shall have the right to resign by at least 45 days advance written
notice to the Committee (unless the Committee shall accept shorter notice), and
if a Change of Control has not occurred the Committee may remove any Trustee
from time to time serving under this
-15-
18
Agreement by at least 45 days advance written notice (unless the Trustee shall
accept shorter notice) to the Trustee received by the Trustee prior to a Change
of Control. No such resignation or removal shall become effective, however,
until the acceptance of the Trust by a successor Trustee designated in
accordance with Section 12(b) of this Agreement.
(b) If the Trustee, or any successor to it designated in
accordance with this Section 12(b), for any reason shall resign, decline, cease
or otherwise fail to serve as Trustee or be removed by the Committee, a new
trustee shall be appointed by the Committee if a Change of Control shall not
have occurred. If the Trustee should resign, decline, cease, or otherwise fail
to serve as Trustee, and a Change of Control has occurred or does occur, or
within 45 days of such resignation, declination, cessation, or failure to serve
the Committee shall not have notified the Trustee of a successor trustee, the
Trustee shall appoint a successor trustee or may, in its sole discretion, apply
to a court of competent jurisdiction for the appointment of a successor trustee.
A successor trustee shall be a bank or trust Company (1) that the appointing
person or entity in its sole discretion considers an appropriate trustee for the
Trust, having due regard for the objectives, magnitude, and expected duration of
the Trust; (2)(i) whose trust assets under investment would place it among the
100 largest trust companies in the United States or (ii) which is a national
banking association or established under the laws of one of the states of the
United States and which has gross assets in excess of $1 billion; and (3) which
is independent and not subject to the control of the Corporation or a
Participant or Beneficiary. The preceding determinations shall be made as of the
time of appointment of the successor trustee.
(c) Upon acceptance of the Trust, each successor Trustee shall
be vested with the title to the Trust assets possessed by the Trustee which it
succeeds less any amounts to which the predecessor Trustee may be entitled under
Section 11 and shall have all the powers, discretions, and duties of such
predecessor Trustee; provided, however, the predecessor Trustee may reserve such
reasonable amount as it shall deem necessary to provide for expenses and
compensation to which it may be entitled under Section 11 and any taxes or other
sums chargeable against the Trust for which it may be liable, and in the event
that the amount so reserved is insufficient for such purposes, the Trustee shall
be entitled to reimbursement from the Corporation or, in the absence thereof,
the successor Trustee. No successor Trustee shall be required to furnish bond.
(d) Each successor Trustee may accept as complete and correct
and may rely upon any accounting by any predecessor Trustee and upon any
statement or representation by any predecessor Trustee as to the assets
comprising or any other matter pertaining to the administration of the Trust. No
successor Trustee shall be liable for any act or omission of any predecessor
Trustee or have any duty to enforce or seek to enforce any claim of any kind
against any predecessor Trustee on account of any such act or omission.
SECTION 13. AMENDMENT AND TERMINATION.
-16-
19
(a) This Agreement shall not be subject to amendment by the
Corporation or any other organization or individual in any respect, except as
provided in this Section 13(a). At any time and from time to time the
Corporation may amend this Agreement in any respect, but only by delivery to the
Trustee of an instrument authorized by the Committee which is signed by two
officers of the Corporation; provided, however, that no such amendment delivered
to the Trustee on or after a Change of Control shall be effective unless the
Corporation shall obtain the written consent to such amendment of any
Participant or Beneficiary affected by such amendment and provide the Trustee
with such evidence of such consent as the Trustee shall reasonably require. Any
amendment shall be effective only upon the Trustee's written acceptance of such
amendment, which acceptance shall not be unreasonably withheld unless such
amendment would affect the powers, duties, liabilities, or compensation of the
Trustee. For purposes of this Section 13(a), any amendment to this Agreement may
be made with respect only to the separate account of an individual Participant
or Beneficiary, in which case such amendment shall be deemed not to affect any
other Participant or Beneficiary.
(b) After full satisfaction of the benefits under the Plan of
a Participant or Beneficiary as determined under Section 7(c) of this Agreement,
any remaining Trust assets attributable to the Participant's or Beneficiary's
separate account shall be returned to the Corporation or redistributed to other
separate accounts under the Trust at the Corporation's option and upon a written
direction by the Committee to the Trustee to such effect.
(c) The Trust shall terminate on the earlier of the date on
which prior to a Change of Control the Trustee receives an instrument revoking
the Trust that is authorized by the Committee and is signed by two officers of
the Corporation or the first date on which all Participants and Beneficiaries
are no longer entitled to benefits under the Plan.
(d) Upon termination of the Trust as provided in Section 13(c)
of this Agreement, any assets remaining in the Trust shall be returned to the
Corporation.
SECTION 14. AMENDMENTS TO PLAN.
(a) The Corporation may amend or terminate the Plan as
provided therein and shall promptly furnish the Trustee with copies of any
modification, amendment, restatement, or change of the Plan.
-17-
20
(b) Notwithstanding the foregoing provisions of Section 14(a)
of this Agreement, any modification, amendment, restatement, termination or
change of the Plan that would increase the responsibilities or liabilities of
the Trustee under this Agreement or change its duties under this Agreement shall
not be binding upon the Trustee without the written consent of the Trustee, and
if the Trustee shall decline to so consent it shall forthwith resign as Trustee
as provided in Section 12 of this Agreement.
SECTION 15. GENERAL PROVISIONS.
(a) Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition without invalidating the
remaining provisions hereof.
(b) No right or interest of any Participant or Beneficiary
under this Agreement may (either at law or in equity) be anticipated, assigned,
alienated, encumbered, pledged or subject to attachment, garnishment, levy,
execution or other legal or equitable process, and any attempted anticipation,
assignment, alienation, encumbrance, pledge, attachment, garnishment, levy,
execution, or subjection to process shall be void ab initio. Except to the
extent amounts have been paid in excess of that due in accordance with the Plan,
no amount paid to a Participant or Beneficiary by Trustee shall be subject to
any claim for repayment by the Corporation or Trustee.
(c) Nothing in this Agreement shall in any way diminish the
rights of a Participant or Beneficiary to pursue his rights as a general
creditor of the Corporation with respect to the benefits under the Plan or
otherwise, and the rights or obligations of a Participant or Beneficiary and the
Corporation under the Plan shall in no way be affected or diminished by any
provision of this Agreement or action taken pursuant to this Agreement except
that any payment actually received by a Participant or Beneficiary hereunder
shall reduce amounts otherwise due to the Participant or Beneficiary pursuant to
the Plan as provided in this Agreement.
(d) If at any relevant time the Committee shall not exist or
be acting, then any action contemplated herein to be taken by the Committee
shall be taken by the Board.
(e) Except as may otherwise be provided hereunder or agreed to
in writing between the Corporation and the Trustee, the Corporation shall have
responsibility for the preparation and delivery to persons and governmental
agencies of all information, descriptions, reports and returns required by law;
the Trustee shall, however, provide such reasonable assistance to the
Corporation as is necessary or appropriate for the Corporation to perform such
obligations. Notwithstanding the
-18-
21
foregoing provisions of this Section 15(e), however, the Trustee shall have
responsibility for filing any returns or reports imposed upon the Trustee as
trustee of the Trust with respect to the Trust under the Code, and the
Corporation shall provide such reasonable assistance to the Trustee as is
necessary or appropriate for the Trustee to file such returns or reports. The
Trustee shall be entitled, as it may deem appropriate, to require the
Corporation or any person having any interest under the Plan or in, to, or under
the Trust, to provide such certifications and proofs of facts as shall permit
the Trustee to perform its duties under applicable law and regulations adopted
thereunder as may be in effect from time to time, or to exercise the powers
granted the Trustee under the Trust.
(f) The creation or maintenance of the Trust shall not entitle
any person to continued employment with the Corporation or any of its
subsidiaries or affiliates or otherwise affect any such employment relationship,
nor shall it entitle any person to continued status as a director of the
Corporation or any of its subsidiaries or affiliates.
(g) Each Participant or Beneficiary is an intended beneficiary
under this Trust, and, as an intended beneficiary, shall be entitled to enforce
the terms and provisions of this Agreement applicable to the Participant or
Beneficiary.
(h) This Agreement may be executed in two or more
counterparts, each of which shall be considered an original agreement.
(i) All notices, requests, consents, and other communications
required hereunder shall be in writing and shall be effective when received:
If to the Corporation at: Brush Wellman Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110-2697
Attention: Secretary
If to the Trustee at: Fifth Third Bank
1404 East Ninth Street
Cleveland, Ohio 44114-1722
Attention: [__________________]
If to a Participant at: The address set forth on Exhibit 3;
provided, however, that if any of the foregoing or its or his successors shall
have designated a different address by written notice, then at the last address
so designated.
-19-
22
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be executed as of the date first above written, and the Trustee has caused
this Agreement to be executed on ________________, 1999.
BRUSH WELLMAN INC.
By__________________________________
Title:
FIFTH THIRD BANK
By__________________________________
Title:
And_________________________________
Title:
-20-
23
EXHIBIT 3
Cash in the following amounts has been transferred and
delivered to the Trustee to be held and administered in accordance with the
foregoing Trust Agreement:
For the Separate Account of Amount Specified Period
(name and address of Participant): ------ ----------------
- ----------------------------------
24
EXHIBIT 5(b)(1)
CERTIFICATE UNDER SECTION 5(B)(1) OF
TRUST AGREEMENT FOR BRUSH WELLMAN INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
The undersigned hereby certifies to _____________________,
Trustee (the "Trustee") under the Trust Agreement for Brush Wellman Inc.
Executive Deferred Compensation Plan dated ___________________, 1999 (the "Trust
Agreement"), that:
(1) The undersigned is a Participant or a Beneficiary.
(2) A Change of Control as described in Section 4 of the Trust
Agreement with respect to the undersigned has occurred.
(3) The undersigned, or the Participant through whom the
Beneficiary claims, has complied with all terms of the Plan in order to
receive a payment [or aggregate payments] of $__________________, which
[are] currently due and owing but has not been delivered by the
Corporation.
(4) The date(s) on which the delivery(s) referred to in (3)
above was or were due are as follows:__________________________________
________________________________________________________________________________
________________________________________________________________________________
(5) The Trustee is hereby directed to pay the undersigned
$_______________________ [and interest thereon] pursuant to Section
5(b) of the Trust Agreement.
(6) The undersigned hereby acknowledges and agrees,
on behalf of himself and his heirs, executors, administrators,
successors and assigns, that any payment or transfer of Designated
Property received by the undersigned from the Trustee pursuant to this
Certificate, shall constitute a payment to the undersigned under the
Plan and shall satisfy the Corporation's liability, if any, with
respect thereto to the extent of such payment and that if and to the
extent that a final, unappealable order of a court of competent
jurisdiction shall hold that the undersigned was not entitled to such
payment, the undersigned shall be liable therefor to the Corporation.
(7) Accompanying this Certificate is an affidavit certifying
that this Certificate is true, correct and complete to the best of the
undersigned's knowledge and binding upon the undersigned and the
undersigned's heirs, executors, administrators, successors and assigns,
and that copies of this Certificate have been delivered to Brush
Wellman Inc.
25
(8) All capitalized terms used in this Certificate that are
not defined herein shall have the meanings given to those terms under
the Trust Agreement.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Certificate this ______ day of _________________, _____.
___________________________________
26
EXHIBIT 5(b)(2)
AFFIDAVIT
____________________________________, being first duly sworn,
deposes and says:
1. That the statements, representations, and acknowledgements made by
the undersigned in the Certificate attached hereto are true, correct, and
complete to the best of the undersigned's knowledge;
2. That the statements, representations, acknowledgements, and
agreements made by the undersigned in the Certificate attached hereto are
binding upon the undersigned and the undersigned's heirs, executors,
administrators, successors, and assigns; and
3. That copies of the Certificate attached hereto have been delivered
to Brush Wellman Inc., to the attention of its Board of Directors and its
Chief Executive Officer.
____________________________________
(signature)
STATE OF ________________, COUNTY OF _______________, SS:
Before me, a Notary Public in and for said State and County,
personally appeared the above named ____________________________________________
who, in my presence, subscribed and swore to the foregoing instrument and
acknowledged that the same is his or her voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at
_________________, __________________, this _______ day of ________________,
________.
____________________________________
Notary Public
27
EXHIBIT 5(c)
LETTER TO PARTICIPANT OR BENEFICIARY UNDER
SECTION 5(B) OR SECTION 5(C) OF TRUST AGREEMENT
BRUSH WELLMAN INC. EXECUTIVE DEFERRED COMPENSATION PLAN
_______________________
_______________________
_______________________
Dear _____________________:
Enclosed is ______________, in payment to you under the Brush
Wellman Inc. Executive Deferred Compensation Plan. [This payment is net of
applicable tax withholding as follows:__________________________________.] By
[cashing the enclosed check] [accepting the enclosed ____________], you
acknowledge and agree that ___________ [pre-tax withholding amount] [shares of
_____] [has][have] been paid to you under the Brush Wellman Inc. Executive
Deferred Compensation Plan.
[Trustee]
By:_________________________________
Title: