EXHIBIT 10y
BRUSH ENGINEERED MATERIALS INC.
PERFORMANCE SHARE AGREEMENT
WHEREAS, _______________________ (hereinafter called the
"Grantee") is ___________________________ of Brush Engineered Materials Inc.
(hereinafter called the "Corporation"); and
WHEREAS, the terms and conditions of this Performance
Agreement were authorized by resolutions (the "Resolutions") of the Organization
and Compensation Committee (the "Committee") of the Board of Directors (the
"Board") of the Corporation duly adopted on February 1, 2005, and the form of
this Agreement was approved by the Committee on March 1, 2005.
NOW THEREFORE, pursuant to the Corporation's 1995 Stock
Incentive Plan (As Amended March 3, 1998), as amended (the "Plan"), the
Corporation hereby grants to the Grantee, effective February 8, 2005 (the "Date
of Grant"), _____ Performance Shares, together with the opportunity to earn up
to an additional 50% of such number of Performance Shares for superior
performance as described herein, subject to the terms and conditions of the Plan
and the following additional terms, conditions, limitations and restrictions:
1. Definitions.
All terms used herein with initial capital letters that are
defined in the Plan shall have the meanings assigned to them in the Plan, and
the following additional terms, when used herein with initial capital letters,
shall have the following meanings:
(a) "Cumulative Operating Profit" means the sum of earnings
(net of any losses) before tax and interest during the Performance Period for
the business unit specified to the Grantee in the notice accompanying this
Agreement.
(b) "Management Objective" means the threshold, target and
maximum Cumulative Operating Profit goals established by the Committee for the
Performance Period covered by this Agreement as set forth on Exhibit A to the
Resolutions.
(c) "Performance Period" means the three-year period
commencing on January 1, 2005 through December 31, 2007.
2. Grant of Performance Shares.
The Performance Shares granted pursuant to this Agreement
shall only result in payment if earned by the Grantee during the Performance
Period as set forth in Section 4 of this Agreement.
3. Earn-Out of Performance Shares.
(a) In no event shall any Performance Shares be earned if
actual achievement falls below the threshold level of the Management Objective.
If the Management Objective shall have been attained at the threshold level and
if the Grantee shall have remained in the continuous employ of the Corporation
or a Subsidiary throughout the Performance Period, 25% of the number of
Performance Shares specified on the first page of this Agreement shall be
earned.
(b) If the Management Objective shall have been attained at
the target level and if the Grantee shall have remained in the continuous employ
of the Corporation or a Subsidiary throughout the Performance Period, 100% of
the number of Performance Shares specified on the first page of this Agreement
shall be earned. If the Management Objective shall have been attained over the
threshold level, but less than the target level, and the Grantee has remained so
continuously employed, a proportionate number of the Performance Shares
specified on the first page of this Agreement shall be earned, as determined by
mathematical interpolation.
(c) If the Management Objective shall have been attained at
the maximum level and if the Grantee shall have remained in the continuous
employ of the Corporation or a Subsidiary throughout the Performance Period,
150% of the number of Performance Shares specified on the first page of this
Agreement shall be earned. If the Management Objective shall have been attained
over the target level, but less than the maximum level, and the Grantee has
remained so continuously employed, a proportionate number of the Performance
Shares specified on the first page of this Agreement shall be earned, as
determined by mathematical interpolation. In no event shall a number of
Preference Shares greater than 150% of the number of Performance Shares
specified on the first page of this Agreement be earned.
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(d) Any fraction of a Performance Share resulting from the
foregoing calculations shall be rounded to the nearest 1/100th of a share.
4. Effect of Death, Permanent Disability, Change in Control.
Notwithstanding the provisions of Section 3 of this Agreement,
if the Grantee's employment with the Corporation terminates due to the death or
permanent disability of the Grantee or if a Change in Control occurs during the
Performance Period, the Performance Shares granted under this Agreement shall be
deemed to have been earned in full at the target level and payable as soon as
practicable after such termination or Change in Control.
5. Effect of Retirement.
Notwithstanding the provisions of Section 3 of this Agreement,
if the Grantee's employment with the Corporation or one of its Subsidiaries
should terminate due to the Grantee's retirement under a retirement plan of the
Corporation or a Subsidiary at or after the normal retirement age provided for
in such retirement plan or retirement at an earlier age with the consent of the
Committee, prior to the earn-out of Performance Shares under this Agreement, the
extent to which the Performance Shares granted hereby shall be deemed to have
been earned shall be determined in accordance with Section 3 of this Agreement
as if the Grantee's employment had not terminated and the result shall be
multiplied by a fraction, the numerator of which is the number of full months
the Grantee was employed during the Performance Period and the denominator of
which is the total number of months in the Performance Period in accordance with
Section 8 of this Agreement.
6. Effect of Detrimental Activity.
Notwithstanding anything herein to the contrary, if the
Grantee, either during employment by the Corporation or a Subsidiary or within
one year after termination of such employment, shall engage in any Detrimental
Activity (as defined in Section 7 below) and the Board shall so find:
(a) All Performance Shares awarded the Grantee under this
Agreement shall be forfeited to the Corporation, and
(b) With respect to any Performance Shares that the Grantee
has received payment for pursuant to this Agreement, within a period of one year
prior to the date of the
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commencement of such Detrimental Activity, the Grantee shall pay to the
Corporation in cash the amount so received by the Grantee. To the extent that
such amounts are not paid to the Corporation, the Corporation may, to the extent
permitted by law, set off the amounts so payable to it against any amounts that
may be owing from time to time by the Corporation or a Subsidiary to the
Grantee, whether as wages, deferred compensation or vacation pay or in the form
of any other benefit or for any other reason.
7. Definition of Detrimental Activity.
For purposes of this Agreement, the term "Detrimental
Activity" shall include:
(a) (i) Engaging in any activity in violation of the Section
entitled "Competitive Activity; Confidentiality; Nonsolicitation" in
the Severance Agreement between the Corporation and the Grantee, if
such agreement is in effect at the date hereof, or in violation of any
corresponding provision in any other agreement between the Corporation
and the Grantee in effect on the date hereof providing for the payment
of severance compensation; or
(i) If no such severance agreement is in effect as of the date
hereof or if a severance agreement does not contain a Section
corresponding to "Competitive Activity; Confidentiality;
Nonsolicitation":
A. Competitive Activity During Employment. Competing
with the Corporation anywhere within the United
States during the term of the Grantee's employment,
including, without limitation:
(1) entering into or engaging in any business
which competes with the business of the
Corporation;
(2) soliciting customers, business, patronage or
orders for, or selling, any products or
services in competition with, or for any
business that competes with, the business of
the Corporation;
(3) diverting, enticing or otherwise taking away
any customers, business, patronage or orders
of the Corporation or attempting to do so;
or
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(4) promoting or assisting, financially or
otherwise, any person, firm, association,
partnership, corporation or other entity
engaged in any business which competes with
the business of the Corporation.
B. Following Termination. For a period of one year
following the Grantee's termination date:
(1) entering into or engaging in any business
which competes with the Corporation's
business within the Restricted Territory (as
hereinafter defined);
(2) soliciting customers, business, patronage or
orders for, or selling, any products or
services in competition with, or for any
business, wherever located, that competes
with, the Corporation's business within the
Restricted Territory;
(3) diverting, enticing or otherwise taking away
any customers, business, patronage or orders
of the Corporation within the Restricted
Territory, or attempting to do so; or
(4) promoting or assisting, financially or
otherwise, any person, firm, association,
partnership, corporation or other entity
engaged in any business which competes with
the Corporation's business within the
Restricted Territory.
For the purposes of Sections 7(a)(ii)(A) and
(B) above, inclusive, but without limitation
thereof, the Grantee will be in violation
thereof if the Grantee engages in any or all
of the activities set forth therein directly
as an individual on the Grantee's own
account, or indirectly as a partner, joint
venturer, employee, agent, salesperson,
consultant, officer and/or director of any
firm, association, partnership, corporation
or other entity, or as a stockholder of any
corporation in which the Grantee or the
Grantee's spouse, child or parent owns,
directly or indirectly, individually or in
the aggregate, more than five percent (5%)
of the outstanding stock.
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C. "The Corporation." For the purposes of this Section
7(a)(ii) of this Agreement, the "Corporation" shall
include any and all direct and indirect subsidiaries,
parents, and affiliated, or related companies of the
Corporation for which the Grantee worked or had
responsibility at the time of termination of the
Grantee's employment and at any time during the two
year period prior to such termination.
D. "The Corporation's Business." For the purposes of
this Section 7 of this Agreement inclusive, the
Corporation's business is defined to be the
manufacture, marketing and sale of high performance
engineered materials serving global
telecommunications, computer, automotive electronics,
industrial components and optical media markets, as
further described in any and all manufacturing,
marketing and sales manuals and materials of the
Corporation as the same may be altered, amended,
supplemented or otherwise changed from time to time,
or of any other products or services substantially
similar to or readily substitutable for any such
described products and services.
E. "Restricted Territory." For the purposes of Section
7(a)(ii)(B) of this Agreement, the Restricted
Territory shall be defined as and limited to:
(1) the geographic area(s) within a one hundred
mile radius of any and all Corporation
location(s) in, to, or for which the Grantee
worked, to which the Grantee was assigned or
had any responsibility (either direct or
supervisory) at the time of termination of
the Grantee's employment and at any time
during the two-year period prior to such
termination; and
(2) all of the specific customer accounts,
whether within or outside of the geographic
area described in (1) above, with which the
Grantee had any contact or for which the
Grantee had any responsibility (either
direct or supervisory) at the time of
termination of the Grantee's employment and
at any time during the two-year period prior
to such termination.
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F. Extension. If it shall be judicially determined that
the Grantee has violated any of the Grantee's
obligations under Section 7(a)(ii)(B) of this
Agreement, then the period applicable to each
obligation that the Grantee shall have been
determined to have violated shall automatically be
extended by a period of time equal in length to the
period during which such violation(s) occurred.
(b) Non-Solicitation. Except as otherwise provided in Section
7(a)(i) of this Agreement, Detrimental Activity shall also include directly or
indirectly at any time soliciting or inducing or attempting to solicit or induce
any employee(s), sales representative(s), agent(s) or consultant(s) of the
Corporation and/or of its parents, or its other subsidiaries or affiliated or
related companies to terminate their employment, representation or other
association with the Corporation and/or its parent or its other subsidiary or
affiliated or related companies.
(c) Further Covenants. Except as otherwise provided in Section
7(a)(i) of this Agreement, Detrimental Activity shall also include:
(i) directly or indirectly, at any time during or after the
Grantee's employment with the Corporation, disclosing, furnishing,
disseminating, making available or, except in the course of performing
the Grantee's duties of employment, using any trade secrets or
confidential business and technical information of the Corporation or
its customers or vendors, including without limitation as to when or
how the Grantee may have acquired such information. Such confidential
information shall include, without limitation, the Corporation's unique
selling, manufacturing and servicing methods and business techniques,
training, service and business manuals, promotional materials, training
courses and other training and instructional materials, vendor and
product information, customer and prospective customer lists, other
customer and prospective customer information and other business
information. The Grantee specifically acknowledges that all such
confidential information, whether reduced to writing, maintained on any
form of electronic media, or maintained in the Grantee's mind or memory
and whether compiled by the Corporation, and/or the Grantee, derives
independent economic value from not being readily known to or
ascertainable by proper means by others who can obtain economic value
from its disclosure or use, that reasonable efforts have been made by
the Corporation to maintain the secrecy of such information, that such
information is the sole
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property of the Corporation and that any retention and use of such
information by the Grantee during the Grantee's employment with the
Corporation (except in the course of performing the Grantee's duties
and obligations to the Corporation) or after the termination of the
Grantee's employment shall constitute a misappropriation of the
Corporation's trade secrets.
(ii) Upon termination of the Grantee's employment with the
Corporation, for any reason, the Grantee's failure to return to the
Corporation, in good condition, all property of the Corporation,
including without limitation, the originals and all copies of any
materials which contain, reflect, summarize, describe, analyze or refer
or relate to any items of information listed in Section 7(c)(i) of this
Agreement.
(d) Discoveries and Inventions. Except as otherwise provided
in Section 7(a)(i) of this Agreement, Detrimental Activity shall also include
the failure or refusal of the Grantee to assign to the Corporation, its
successors, assigns or nominees, all of the Grantee's rights to any discoveries,
inventions and improvements, whether patentable or not, made, conceived or
suggested, either solely or jointly with others, by the Grantee while in the
Corporation's employ, whether in the course of the Grantee's employment with the
use of the Corporation's time, material or facilities or that is in any way
within or related to the existing or contemplated scope of the Corporation's
business. Any discovery, invention or improvement relating to any subject matter
with which the Corporation was concerned during the Grantee's employment and
made, conceived or suggested by the Grantee, either solely or jointly with
others, within one year following termination of the Grantee's employment under
this Agreement or any successor agreements shall be irrebuttably presumed to
have been so made, conceived or suggested in the course of such employment with
the use of the Corporation's time, materials or facilities. Upon request by the
Corporation with respect to any such discoveries, inventions or improvements,
the Grantee will execute and deliver to the Corporation, at any time during or
after the Grantee's employment, all appropriate documents for use in applying
for, obtaining and maintaining such domestic and foreign patents as the
Corporation may desire, and all proper assignments therefor, when so requested,
at the expense of the Corporation, but without further or additional
consideration.
(e) Work Made For Hire. Except as otherwise provided in
Section 7(a)(i), Detrimental Activity shall also include violation of the
Corporation's rights in any or all work
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papers, reports, documentation, drawings, photographs, negatives, tapes and
masters therefor, prototypes and other materials (hereinafter, "items"),
including without limitation, any and all such items generated and maintained on
any form of electronic media, generated by Grantee during the Grantee's
employment with the Corporation. The Grantee acknowledges that, to the extent
permitted by law, all such items shall be considered a "work made for hire" and
that ownership of any and all copyrights in any and all such items shall belong
to the Corporation. The item will recognize the Corporation as the copyright
owner, will contain all proper copyright notices, e.g., "(creation date)
[Corporation Name], All Rights Reserved," and will be in condition to be
registered or otherwise placed in compliance with registration or other
statutory requirements throughout the world.
(f) Termination for Cause. Except as otherwise provided in
Section 7(a)(i) of this Agreement, Detrimental Activity shall also include
activity that results in termination for Cause. For the purposes of this Section
7, "Cause" shall mean that, the Grantee shall have:
(i) been convicted of a criminal violation involving fraud,
embezzlement, theft or violation of federal antitrust statutes or
federal securities laws in connection with his duties or in the course
of his employment with the Corporation or any affiliate of the
Corporation;
(ii) committed intentional wrongful damage to property of the
Corporation or any affiliate of the Corporation; or (iii) committed
intentional wrongful disclosure of secret processes or confidential
information of the Corporation or any affiliate of the Corporation;
and any such act shall have been demonstrably and materially
harmful to the Corporation.
(g) Other Injurious Conduct. Detrimental Activity shall also
include any other conduct or act determined to be injurious, detrimental or
prejudicial to any significant interest of the Corporation or any subsidiary
unless the Grantee acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation.
(h) Reasonableness. The Grantee acknowledges that the
Grantee's obligations under this Section 7 of this Agreement are reasonable in
the context of the nature of the
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Corporation's business and the competitive injuries likely to be sustained by
the Corporation if the Grantee were to violate such obligations. The Grantee
further acknowledges that this Agreement is made in consideration of, and is
adequately supported by the agreement of the Corporation to perform its
obligations under this Agreement and by other consideration, which the Grantee
acknowledges constitutes good, valuable and sufficient consideration.
8. Payment of Performance Shares.
(a) Payment shall be made in the form of cash equal to the
average of the high and low sales prices of the Common Shares of the Corporation
on the New York Stock Exchange on the last day of the Performance Period
multiplied by the number of Performance Shares earned pursuant to Section 3 this
Agreement. Except as otherwise provided in Section 4 of this Agreement, final
awards shall be paid, less applicable taxes, as soon as practicable after the
receipt of audited financial statements relating to the last fiscal year of the
Performance Period and the determination by the Committee of the level of
attainment of the Management Objective, but in no event later than two and
one-half months after the end of the last fiscal year in the Performance Period.
(b) Any payment of awards due pursuant to this Agreement to a
deceased Grantee shall be paid to the beneficiary designated by the Grantee by
the latest Designation of Death Beneficiary in the form attached as Exhibit A
hereto and filed by the Grantee with the Corporation. If no such beneficiary has
been designated or survives the Grantee, payment shall be made to the Grantee's
legal representative. A beneficiary designation may be changed or revoked by a
Grantee at any time, provided the change or revocation is filed with the
Corporation.
(c) Prior to payment, the Corporation shall only have an
unfunded and unsecured obligation to make payment of earned awards to the
Grantee.
9. Performance Shares Non-Transferable.
The Performance Shares granted hereby are not transferable
other than by will or the laws of descent and distribution.
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10. Dilution and Other Adjustments.
The Committee shall make such adjustments in the Management
Objective and/or Performance Shares covered by this Agreement as such Committee
in its sole discretion, exercised in good faith, may determine is equitably
required to prevent dilution or enlargement of the rights of the Grantee that
otherwise would result from (a) any stock dividend, stock split, combination of
shares, recapitalization or other change in the capital structure of the
Corporation, or (b) any merger, consolidation, spin-off, reorganization, partial
or complete liquidation or other distribution of assets, or issuance of warrants
or other rights to purchase securities, or (c) any other corporate transaction
or event having an effect similar to any of the foregoing. In the event of any
such transaction or event, the Committee may provide in substitution for this
award of Performance Shares such alternative consideration as it may in good
faith determine to be equitable under the circumstances and may require in
connection therewith the surrender of this award of Performance Shares so
replaced.
11. Continuous Employment.
For purposes of this Agreement, the continuous employ of the
Grantee with the Corporation or a Subsidiary shall not be deemed interrupted,
and the Grantee shall not be deemed to have ceased to be an employee of the
Corporation or any Subsidiary, by reason of the transfer of his or her
employment among the Corporation and its Subsidiaries or a leave of absence
approved by the Board.
12. Right to Terminate Employment.
No provision of this Agreement shall limit in any way
whatsoever any right that the Corporation or a Subsidiary may otherwise have to
terminate the employment of the Grantee at any time.
13. Amendments.
Any amendment to the Plan shall be deemed to be an amendment
to this Agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of the
Grantee under this Agreement without the Grantee's consent.
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14. Severability.
In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
15. Governing Law.
This agreement is made under, and shall be construed in
accordance with, the internal substantive laws of the State of Ohio.
16. Compliance with Section 409A of the Code.
To the extent applicable, it is intended that this Agreement
and the Plan comply with the provisions of Section 409A of the Code. This
Agreement and the Plan shall be administered in a manner consistent with this
intent, and any provision that would cause the Agreement or the Plan to fail to
satisfy Section 409A of the Code shall have no force and effect until amended to
comply with Section 409A of the Code (which amendment may be retroactive to the
extent permitted by Section 409A of the Code and may be made by the Corporation
without the consent of the Grantee).
The undersigned Grantee hereby accepts the award of
Performance Shares granted pursuant to this Performance Share Agreement on the
terms and conditions set forth herein.
Dated:
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Grantee
Executed in the name of and on behalf of the Corporation at
Cleveland, Ohio as of this 8th day of February, 2005.
BRUSH ENGINEERED MATERIALS INC.
By
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Michael C. Hasychak
Vice President, Treasurer and Secretary
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EXHIBIT A
1995 STOCK INCENTIVE PLAN
BRUSH ENGINEERED MATERIALS INC.
BENEFICIARY DESIGNATIONS
In accordance with the terms and conditions of the 1995 Stock Incentive
Plan of Brush Engineered materials Inc. (the "Plan"), I hereby designate the
person(s) indicated below as my beneficiary(ies) to receive any amounts payable
under said Plan after my death.
Name
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Address
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Social Sec. Nos. of Beneficiary(ies)
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Relationship(s)
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Date(s) of Birth
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In the event that the above-named beneficiary(ies) predecease(s) me, I
hereby designate the following person as beneficiary(ies);
Name
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Address
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Social Sec. Nos. of Beneficiary(ies)
----------------------------------
Relationship(s)
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Date(s) of Birth
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I hereby expressly revoke all prior designations of beneficiary(ies),
reserve the right to change the beneficiary(ies) herein designated and agree
that the rights of said beneficiary(ies) shall be subject to the terms of the
Plan. In the event that there is no beneficiary living at the time of my death,
I understand that the amounts payable under the Plan will be paid to my estate.
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Date
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(Print or type name)
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(Signature)