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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.
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(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
