Exhibit 10W
BRUSH XXXXXXX INC.
Agreement Relating to Restricted Shares
WHEREAS, _________________________ (the "Grantee") is an employee of
Brush Xxxxxxx Inc., an Ohio corporation (the "Corporation"); and
WHEREAS, the execution of an agreement in the form hereof (this
"Agreement") has been authorized by a resolution of the Organization and
Compensation Committee (the "Committee") of the Board of Directors of the
Corporation that was duly adopted on __________ __, 199_ (the "Date of Grant");
NOW, THEREFORE, pursuant to the Corporation's 1995 Stock Incentive
Plan (the "Plan"), the Corporation hereby grants to the Grantee _______________
Restricted Shares (as defined in the Plan), effective as of the Date of Grant,
and subject to the terms and conditions of the Plan and the following additional
terms, conditions, limitations and restrictions:
ARTICLE I
DEFINITIONS
All terms used herein with initial capital letters and not otherwise
defined herein that are defined in the Plan shall have the meanings assigned to
them in the Plan.
ARTICLE II
CERTAIN TERMS OF RESTRICTED SHARES
1. Issuance of Restricted Shares. The Restricted Shares covered by this
Agreement shall be issued to the Grantee effective upon the Date of Grant. The
Common Shares subject to this grant of Restricted Shares shall be fully paid and
nonassessable and shall be represented by a
certificate or certificates registered in the Grantee's name, endorsed with an
appropriate legend referring to the restrictions hereinafter set forth.
2. Restrictions on Transfer of Shares. The Common Shares subject to this
grant of Restricted Shares may not be sold, exchanged, assigned, transferred,
pledged, encumbered or otherwise disposed of by the Grantee, except to the
Corporation, until the Restricted Shares have become nonforfeitable as provided
in Section 3 hereof; provided, however, that the Grantee's rights with respect
to such Common Shares may be transferred by will or pursuant to the laws of
descent and distribution. Any purported transfer or encumbrance in violation of
the provisions of this Section 2 of this Article II shall be void, and the other
party to any such purported transaction shall not obtain any rights to or
interest in such Common Shares. The Corporation in its sole discretion, when and
as permitted by the Plan, may waive the restrictions on transferability with
respect to all or a portion of the Common Shares subject to this grant of
Restricted Shares.
3. Vesting of Restricted Shares. (a) All of the Restricted Shares covered
by this Agreement shall become nonforfeitable if the Grantee shall have remained
in the continuous employ of the Corporation or a Subsidiary for three years from
the Date of Grant.
(b) Notwithstanding the provisions of Section 3(a) of this Article
II, all of the Restricted Shares covered by this Agreement shall immediately
become nonforfeitable (i) if the Grantee dies or becomes permanently disabled
while in the employ of the Corporation or a Subsidiary during the three-year
period from the Date of Grant, or (ii) if a Change in Control occurs during the
three-year period from the Date of Grant while the Grantee is employed by the
Corporation or a Subsidiary.
(c) Notwithstanding the provisions of Section 3(a) of this Article
II, if the Grantee retires under a retirement plan of the Corporation or a
Subsidiary at or after the normal
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retirement age provided for in such retirement plan or retires at an earlier age
with the consent of the Committee, a portion of the Restricted Shares covered by
this Agreement shall become nonforfeitable. The number of Restricted Shares that
shall become nonforfeitable shall be determined by multiplying the total number
of Restricted Shares granted hereunder by the number of months the Grantee
remained in the continuous employ of the Corporation or a Subsidiary between the
Date of Grant and the effective date of such retirement divided by 36. The
Committee may, however, provide that more than such fraction shall become
nonforfeitable in its discretion pursuant to Section 14 of the Plan.
4. Forfeiture of Shares. The Restricted Shares shall be forfeited, except
as otherwise provided in Section 3(c) above, if the Grantee ceases to be
employed by the Corporation or a Subsidiary prior to three years from the Date
of Grant. In the event of a forfeiture, the certificate(s) representing the
Restricted Shares covered by this Agreement shall be cancelled.
5. Dividend, Voting and Other Rights. (a) Except as otherwise provided
herein, from and after the Date of Grant, the Grantee shall have all of the
rights of a shareholder with respect to the Performance Restricted Shares
covered by this Agreement, including the right to vote such Performance
Restricted Shares and receive any dividends that may be paid thereon; provided,
however, that any additional Common Shares or other securities that the Grantee
may become entitled to receive pursuant to a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, separation or
reorganization or any other change in the capital structure of the Corporation
shall be subject to the same restrictions as the Restricted Shares covered by
this Agreement.
(b) Cash dividends on the Restricted Shares covered by this
Agreement shall be sequestered by the Corporation from and after the Date of
Grant until such time as any of such Restricted Shares become nonforfeitable in
accordance with Section 3 of this Article II,
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whereupon such dividends shall be paid to the Grantee in cash to the extent such
dividends are attributable to Restricted Shares that have become nonforfeitable.
To the extent that Restricted Shares covered by this Agreement are forfeited
pursuant to Section 4 of this Article II, all the dividends sequestered with
respect to such Restricted Shares shall also be forfeited. No interest shall be
payable with respect to any such dividends.
6. Retention of Stock Certificate(s) by the Corporation. The
certificate(s) representing the Restricted Shares covered by this Agreement
shall be held in custody by the Corporation, together with a stock power
endorsed in blank by the Grantee with respect thereto, until those shares have
become nonforfeitable in accordance with Section 3 of this Article II.
ARTICLE III
GENERAL PROVISIONS
1. Compliance with Law. The Corporation shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Corporation shall not
be obligated to issue any Common Shares pursuant to this Agreement if the
issuance thereof would result in a violation of any such law.
2. Withholding Taxes. If the Corporation or any Subsidiary shall be
required to withhold any federal, state, local or foreign tax in connection with
any issuance or vesting of Common Shares or other securities pursuant to this
Agreement, the Grantee shall pay the tax or make provisions that are
satisfactory to the Corporation or such Subsidiary for the payment thereof. The
Grantee may elect to satisfy all or any part of any such withholding obligation
by surrendering to the Corporation or such Subsidiary a portion of the Common
Shares that are issued or transferred to the Grantee or that become
nontransferable by the Grantee hereunder, and the Common Shares so surrendered
by the Grantee shall be credited against any such
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withholding obligation at the Market Value per Share of such Common Shares on
the date of such surrender.
3. Continuous Employment. For purposes of this Agreement, the continuous
employment of the Grantee with the Corporation or a Subsidiary shall not be
deemed to have been interrupted, and the Grantee shall not be deemed to have
ceased to be an employee of the Corporation or a Subsidiary, by reason of the
transfer of his employment among the Corporation and its Subsidiaries or a leave
of absence approved by the Board.
4. 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.
5. Relation to Other Benefits. Any economic or other benefit to the
Grantee under this Agreement or the Plan shall not be taken into account in
determining any benefits to which the Grantee may be entitled under any
profit-sharing, retirement or other benefit or compensation plan maintained by
the Corporation or a Subsidiary and shall not affect the amount of any life
insurance coverage available to any beneficiary under any life insurance plan
covering employees of the Corporation or a Subsidiary.
6. 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 with under this Agreement without the Grantee's consent.
7. 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.
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8. Governing Law. This agreement is made under, and shall be construed in
accordance with, the internal substantive laws of the State of Ohio.
This Agreement is executed by the Corporation as of the ______ day of
_______________, 199_.
BRUSH XXXXXXX INC.
By: _____________________
Name:
Title:
The undersigned hereby acknowledges receipt of an executed original
of this Agreement Relating to Restricted Shares and accepts the award of
Restricted Shares granted thereunder on the terms and conditions set forth
herein and in the 1995 Stock Incentive Plan.
Date:____________________ _________________________
Grantee
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EXHIBIT A
1995 STOCK INCENTIVE PLAN
BRUSH XXXXXXX INC.
BENEFICIARY DESIGNATIONS
In accordance with the terms and conditions of the 1995 Stock
Incentive Plan of Brush Xxxxxxx 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 ______________________________________
Address ___________________________________
___________________________________
___________________________________
Social Sec. Nos. of Beneficiary(ies) __________________________________
Relationship(s) _______________________________________________________
Date(s) of Birth ______________________________________________________
In the event that the above-named beneficiary(ies) predecease(s) me,
I hereby designate the following person as beneficiary(ies);
Name ______________________________________
Address ___________________________________
___________________________________
___________________________________
Social Sec. Nos. of Beneficiary(ies) __________________________________
Relationship(s) _______________________________________________________
Date(s) of Birth ______________________________________________________
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.
__________________________________
Date
__________________________________
(Print or type name)
__________________________________
(Print or type name)
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