EX-10.6






Exhibit 10.6




(2005)




Form M




Cash or Stock




BRUSH ENGINEERED MATERIALS INC.




Nonqualified Stock Option Agreement




WHEREAS, Gordon D. Harnett (hereinafter called the “Optionee”) is Chairman, President and CEO
of Brush Engineered Materials Inc. (hereinafter called 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 (the “Board”) of the Company duly adopted on February 1, 2005 and incorporated herein by
reference.



NOW THEREFORE, the Company, pursuant to the Company’s 1995 Stock Incentive Plan (As amended
March 3, 1998) and as further amended by Amendment No. 1 thereto (the “Plan”), hereby grants to
the Optionee, effective February 8, 2005 (the “Date of Grant”) an option to purchase      shares
of Common Stock without par value 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 in full after
the Optionee shall have been in the continuous employ of the Company or any subsidiary for 140 days
from the Date of Grant. For the purpose of this Agreement, leaves of absence approved by the Board
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 the Optionee should
die while in the employ of the Company or any subsidiary; and




(B) This option shall become immediately exercisable in full if the Optionee’s
employment with the Company terminates under circumstances determined by the Board
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:




(A) 190 days after the Optionee ceases to be an employee of the Company or a
subsidiary, unless he ceases to be such employee 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, by reason of death or in a
manner described in clause (B) or (E) below;




(B) One year after the Optionee ceases to be an employee of the Company or a
subsidiary if the Optionee is disabled within the meaning of Section 105(d)(4) of
the Internal Revenue Code;




(C) One year 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 (A) or (B) above
which is applicable to the Optionee;




(D) Ten years from the Date of Grant; and




(E) Immediately if the Optionee engages in any Detrimental Activity (as hereinafter
defined).



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. If the Optionee, either during employment by the Company or a subsidiary or within one year
after termination of such employment, shall engage in any Detrimental Activity, and the Board shall
so find, the Optionee shall:




(A) Return to the Company, in exchange for payment by the Company of the Option
Price paid therefor, all shares of Common Stock that the Optionee has not disposed
of that were purchased pursuant to this Agreement, and




(B) With respect to any shares of Common Stock that the Optionee has disposed of
that were purchased pursuant to this Agreement, pay to the Company in cash the
difference between:




(i) The option price paid therefor by the Optionee pursuant to this
Agreement, and




(ii) The closing price of the shares of Common Stock on the New York Stock
Exchange on the date of such purchase (or on the last trading day prior to
such purchase, if there was no trading on the purchase date).



To the extent that such amounts are not paid to the Company, the Company 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 Company or a subsidiary to the Optionee, whether as wages, deferred
compensation or vacation pay or in the form of any other benefit or for any other reason.




4. 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
Company and the Optionee, if such agreement is in effect at the date hereof, or in
violation of any corresponding provision in any other agreement between the Company
and the Optionee in effect on the date hereof providing for the payment of severance
compensation; or




(ii) If no such severance agreement is in effect or if a severance agreement
does not contain a section corresponding to “Competitive Activity;
Confidentiality; Nonsolicitation” as of the date hereof:




a. Competitive Activity During Employment. Competing with the
Company anywhere within the United States during the term of the Optionee’s
employment, including, without limitation:




(1) entering into or engaging in any business which competes
with the business of the Company;




(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 Company;




(3) diverting, enticing or otherwise taking away any customers,
business, patronage or orders of the Company 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 business of the
Company.




b. Following Termination. For a period of one year following
the Optionee’s termination date:




(1) entering into or engaging in any business which competes
with the Company’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 Company’s
business within the Restricted Territory;




(3) diverting, enticing or otherwise taking away any customers,
business, patronage or orders of the Company 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 Company’s business
within the Restricted Territory.




For the purposes of Sections 4(A)(ii)(a) and (b) above,
inclusive, but without limitation thereof, the Optionee will be in
violation thereof if the Optionee engages in any or all of the
activities set forth therein directly as an individual on the
Optionee’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 Optionee or the
Optionee’s spouse, child or parent owns, directly or indirectly,
individually or in the aggregate, more than five percent (5%) of the
outstanding stock.




c. “The Company.” For the purposes of this Section 4(A)(ii),
the “Company” shall include any and all direct and indirect subsidiaries,
parents, and affiliated, or related companies of the Company for which the
Optionee worked or had responsibility at the time of termination of the
Optionee’s employment and at any time during the two year period prior to
such termination.




d. “The Company’s Business.” For the purposes of this Section
4 inclusive, the Company’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 Company 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
4(A)(ii)(b), 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 Company location(s) in, to, or for which the Optionee
worked, to which the Optionee was assigned or had any responsibility
(either direct or supervisory) at the time of termination of the
Optionee’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
Optionee had any contact or for which the Optionee had any
responsibility (either direct or supervisory) at the time of
termination of the Optionee’s employment and at any time during the
two-year period prior to such termination.




f. Extension. If it shall be judicially determined that the
Optionee has violated any of the Optionee’s obligations under Section
4(A)(ii)(b), then the period applicable to each obligation that the Optionee
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 4(A)(i),
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 Company and/or of its parents,
or its other subsidiaries or affiliated or related companies to terminate their
employment, representation or other association with the Company and/or its parent
or its other subsidiary or affiliated or related companies.




(C) Further Covenants. Except as otherwise provided in Section 4(A)(i),
Detrimental Activity shall also include:




(i) directly or indirectly, at any time during or after the Optionee’s
employment with the Company, disclosing, furnishing, disseminating, making
available or, except in the course of performing the Optionee’s duties of
employment, using any trade secrets or confidential business and technical
information of the Company or its customers or vendors, including without
limitation as to when or how the Optionee may have acquired such
information. Such confidential information shall include, without
limitation, the Company’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 Optionee specifically acknowledges that all such
confidential information, whether reduced to writing, maintained on any form
of electronic media, or maintained in the Optionee’s mind or memory and
whether compiled by the Company, and/or the Optionee, 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 Company to maintain the
secrecy of such information, that such information is the sole property of
the Company and that any retention and use of such information by the
Optionee during the Optionee’s employment with the Company (except in the
course of performing the Optionee’s duties and obligations to the Company)
or after the termination of the Optionee’s employment shall constitute a
misappropriation of the Company’s trade secrets.




(ii) Upon termination of the Optionee’s employment with the Company, for any
reason, the Optionee’s failure to return to the Company, in good condition,
all property of the Company, 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
4(C)(i) of this Agreement.




(D) Discoveries and Inventions. Except as otherwise provided in Section
4(A)(i), Detrimental Activity shall also include the failure or refusal of the
Optionee to assign to the Company, its successors, assigns or nominees, all of the
Optionee’s rights to any discoveries, inventions and improvements, whether
patentable or not, made, conceived or suggested, either solely or jointly with
others, by the Optionee while in the Company’s employ, whether in the course of the
Optionee’s employment with the use of the Company’s time, material or facilities or
that is in any way within or related to the existing or contemplated scope of the
Company’s business. Any discovery, invention or improvement relating to any subject
matter with which the Company was concerned during the Optionee’s employment and
made, conceived or suggested by the Optionee, either solely or jointly with others,
within one year following termination of the Optionee’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
Company’s time, materials or facilities. Upon request by the Company with respect
to any such discoveries, inventions or improvements, the Optionee will execute and
deliver to the Company, at any time during or after the Optionee’s employment, all
appropriate documents for use in applying for, obtaining and maintaining such
domestic and foreign patents as the Company may desire, and all proper assignments
therefor, when so requested, at the expense of the Company, but without further or
additional consideration.




(E) Work Made For Hire. Except as otherwise provided in Section 4(A)(i),
Detrimental Activity shall also include violation of the Company’s rights in any or
all work 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 Optionee during the Optionee’s employment with the
Company. The Optionee 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 Company. The item will
recognize the Company as the copyright owner, will contain all proper copyright
notices, e.g., “(creation date) [Company 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 4(A)(i),
Detrimental Activity shall also include activity that results in termination for
Cause. For the purposes of this Section, “Cause” shall mean that, the Optionee
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
Company or any affiliate of the Company;




(ii) committed intentional wrongful damage to property of the Company or any
affiliate of the Company; or




(iii) committed intentional wrongful disclosure of secret processes or
confidential information of the Company or any affiliate of the Company;




and any such act shall have been demonstrably and materially harmful to the Company.




(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 Company or any subsidiary unless the Optionee 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 Company.




(H) Reasonableness. The Optionee acknowledges that the Optionee’s
obligations under this Section 4 are reasonable in the context of the nature of the
Company’s business and the competitive injuries likely to be sustained by the
Company if the Optionee were to violate such obligations. The Optionee further
acknowledges that this Agreement is made in consideration of, and is adequately
supported by the agreement of the Company to perform its obligations under this
Agreement and by other consideration, which the Optionee acknowledges constitutes
good, valuable and sufficient consideration.



5. 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.



6. 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.



7. 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.



8. 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 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 8 shall require the Company to
sell any fractional share.



9. 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.



10. 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.



11. This Agreement shall be governed by and construed with the internal substantive laws of
the State of Ohio, without giving effect to any principle of law that would result in the
application of the law of any other jurisdiction.



The undersigned Optionee hereby accepts the options granted pursuant to this Nonqualified
Stock Option Agreement on the terms and conditions set forth herein.



Dated:




Optionee



Executed in the name of and on behalf of the Company at Cleveland, Ohio as of this 8th day of
February, 2005.




BRUSH ENGINEERED MATERIALS INC.




By




Michael C. Hasychak




Vice President, Treasurer and Secretary