Exhibit 10t
(1995)
Form B
Cash or Stock
BRUSH XXXXXXX INC.
Nonqualified Stock Option Agreement
WHEREAS, __________________________________ (hereinafter called the
"Optionee") is a salaried employee of Brush Xxxxxxx Inc. (hereinafter called the
"Company") or a subsidiary of the Company; and
WHEREAS, the execution of a Stock Option Agreement in the form
hereof has been duly authorized by a resolution of the Organization and
Compensation Committee (the "Committee") of the Board of Directors of the
Company duly adopted on December __, 1995 and incorporated herein by reference;
NOW THEREFORE, the Company, pursuant to the Company's 1995 Stock
Incentive Plan (the "Plan"), hereby grants to the Optionee an option to purchase
shares of Common Stock of the par value of $1 per share of the Company, at the
price of $ per share ("option price"), and agrees to cause certificates for any
shares purchased hereunder to be delivered to the Optionee upon receipt of the
purchase price, all subject, however, to the terms and conditions of the Plan
and the terms and conditions hereinafter set forth. The option price shall be
payable (i) in cash, (ii) by the transfer to the Company by the Optionee of
nonforfeitable, unrestricted shares of Common Stock of the Company held by the
Optionee for more than one year and having a fair market value at the time of
exercise of this option equal to the total option price of the shares of Common
Stock which are the subject of such exercise, or (iii) by a combination of such
methods of payment.
1. This option (unless terminated as hereinafter provided) shall be
exercisable only to the extent of forty percent (40%) of the shares hereinabove
specified after the Optionee shall have been in the continuous employ of the
Company or any subsidiary for one full year from the date hereof and to the
extent of an additional twenty percent (20%) of such shares after each of the
next three successive years thereafter during which the Optionee shall have been
in the continuous employ of the Company or any subsidiary. For the purpose of
this Agreement, leaves of absence approved by the Board of Directors of the
Company for illness, military or governmental service, or other cause, shall be
considered as employment. To the extent exercisable, this option may be
exercised in whole or in part from time to time.
Notwithstanding the preceding paragraph:
(A) This option shall become immediately exercisable in full if (i)
the Optionee should retire under a retirement plan of the Company or
any subsidiary at or after the earliest voluntary retirement age
provided in such retirement plan or
should retire at an earlier age with the consent of the Board of
Directors; or (ii) the Optionee should die while in the employ of
the Company or any subsidiary; and
(B) This option shall become immediately exercisable in full in the
event of a Change in Control of the Company. A "Change in Control"
of the Company shall be deemed to have occurred if any of the
following events shall have occurred:
(i) The Board of Directors of the Company at any time shall
fail to include a majority of Directors who are either
"Original Directors" or "Approved Directors." An Original
Director is a Director who was serving on February 7, 1995. 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.
(ii) Any person (as the term "person" is defined in Section
1701.01(G) of the Ohio Revised Code) shall have made a
"control share acquisition" (as the term "control share
acquisition" is defined in Section 1701.01(Z) of the Ohio
Revised Code) of shares of the Company without having first
complied with Section 1701.831 of the Ohio Revised Code
(dealing with control share acquisitions).
(iii) The Board of Directors of the Company 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 Company, tender offer for shares of the Company, merger,
consolidation, sale of assets, proxy contest, or other
transaction or event or series of transactions or events will,
or is likely to, if carried out, result in a Change in Control
falling within paragraph (i) or (ii) above and (b) it is in
the best interests of the Company and its shareholders, and
will serve the intended purposes of the Plan, if such
transaction or event or series of transactions or events is
deemed to be a Change in Control.
Any determination of the Board of Directors with respect to the
subject matter of this Clause (B), based on information known to the Board
of Directors and made in good faith, shall be conclusive and binding.
(C) This option shall become immediately exercisable in full if the
Optionee's employment with the Company terminates under
circumstances determined by the Board of Directors to be for the
convenience of the Company and the Committee approves the
acceleration of the right to exercise the option under such
circumstances.
2. This option shall terminate on the earliest of the following
dates:
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(A) On the date upon which the Optionee ceases to be an
employee of the Company or a subsidiary, unless he ceases to be such
employee by reason of death or in a manner described in clause (B)
or (C) below;
(B) Three months after the Optionee ceases to be an employee
of the Company or a subsidiary by reason of termination of
employment under circumstances determined by the Board of Directors
to be for the convenience of the Company (except that such period
shall be one year if the Optionee is disabled within the meaning of
Section 105(d)(4) of the Internal Revenue Code);
(C) Three years after the Optionee ceases to be an employee of
the Company or a subsidiary by reason of retirement under a
retirement plan of the Company or a subsidiary at or after the
earliest voluntary retirement age provided for in such retirement
plan or retirement at an earlier age with the consent of the Board
of Directors;
(D) Twelve months after the death of the Optionee, if the
Optionee dies while an employee of the Company or a subsidiary or
within the period specified in (B) above which is applicable to the
Optionee; and
(E) Ten years from the date on which this option was granted.
In the event the Optionee shall intentionally commit an act materially inimical
to the interests of the Company or a subsidiary, and the Board of Directors
shall so find, this option shall terminate at the time of such act,
notwithstanding any other provision of this Agreement. Nothing contained in this
option shall limit whatever right the Company or a subsidiary might otherwise
have to terminate the employment of the Optionee.
3. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution, and is exercisable, during the
lifetime of the Optionee, only by him or, in the case of his legal incapacity,
only by his guardian or legal representative.
4. This option shall not be exercisable if such exercise would
involve a violation of any applicable state securities law, and the Company
hereby agrees to make reasonable efforts to comply with any applicable state
securities law. If the Ohio Securities Act shall be applicable to this option,
it shall not be exercisable unless under said Act at the time of exercise the
shares of Common Stock or other securities purchasable hereunder are exempt, are
the subject matter of an exempt transaction, are registered by description or by
qualification, or at such time are the subject matter of a transaction which has
been registered by description.
5. This option shall not be exercisable if at the time of exercise
such exercise would require registration under the Securities Act of 1933, as
amended, or any similar federal securities law then in effect, of the shares of
Common Stock or other securities to be purchased hereunder and such registration
shall not then be effective. The Company hereby agrees to make reasonable
efforts to effect any such required registration.
6. The Committee shall make such adjustments in the option price and
in the number or kind of shares of Common Stock or other securities covered by
this option as such
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Committee in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the rights of the
Optionee that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization or other change in the capital structure
of the Company, 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 option such alternative consideration as it may in good
faith determine to be equitable under the circumstances and may require in
connection therewith the surrender of this option so replaced. No adjustment
provided for in this Paragraph 6 shall require the Company to sell any
fractional share.
7. The term "subsidiary" as used in this Agreement means any
corporation, partnership, joint venture, unincorporated association or other
entity in which the Company has a direct or indirect ownership or other equity
interest. For purposes of this Agreement, the continuous employ of the Optionee
with the Company or a subsidiary shall not be deemed interrupted, and the
Optionee shall not be deemed to have ceased to be an employee of the Company and
its subsidiaries.
8. This option is intended to be a nonqualified stock option, and
will not be treated as an "incentive stock option" as that letter term is
defined in Section 422 of the Internal Revenue Code.
Executed at Cleveland, Ohio this _____ day of December, 1995.
BRUSH XXXXXXX INC.
By
________________________________
Xxxx Xxxxxx
Chief Financial Officer
The undersigned Optionee hereby acknowledges receipt of an executed original of
this Stock Option Agreement.
__________________________________
Optionee
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