EX-10.4






Exhibit 10.4




SEVERANCE AGREEMENT




THIS SEVERANCE AGREEMENT (this “Agreement”), dated as of      ,      is made
and entered by and between Brush Engineered Materials Inc., an Ohio corporation (the “Company”),
and      (the “Executive”).



WITNESSETH:




WHEREAS, the Executive is a senior executive of the Company or one or more of its Subsidiaries
and has made and is expected to continue to make major contributions to the short- and long-term
profitability, growth and financial strength of the Company;



WHEREAS, the Company recognizes that, as is the case for most companies, the possibility of a
Change in Control (as defined below) exists;



WHEREAS, the Company desires to assure itself of both present and future continuity of
management and desires to establish certain minimum severance benefits for certain of its senior
executives, including the Executive, applicable in the event of a Change in Control;



WHEREAS, the Company wishes to ensure that its senior executives are not practically disabled
from discharging their duties in respect of a proposed or actual transaction involving a Change in
Control; and



WHEREAS, the Company desires to provide additional inducement for the Executive to continue to
remain in the employ of the Company;




NOW, THEREFORE, the Company and the Executive agree as follows:




	 	1.	 	Certain Defined Terms. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement with initial capital letters:






	 	(a)	 	“Affiliate” means with respect to any Person, any holder of more than 10% of
the outstanding shares or equity interests of such Person or any other Person which
directly or indirectly controls, is controlled by or is under common control with such
Person. A Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the management
and policies of the “controlled” Person, whether through ownership of voting
securities, by contract or otherwise.






	 	(b)	 	“Base Pay” means the Executive’s annual base salary rate as in effect from time
to time.






(c) “Board” means the Board of Directors of the Company.




	 	(d)	 	“Cause” means that, prior to any termination pursuant to Section 3(a)(iii),
Section 3(b) or Section 3(c), the Executive 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;






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






	 	(iv)	 	intentionally engaged in any activity in violation of Section
8;






and any such act shall have been demonstrably and materially harmful to the Company. For
purposes of this Agreement, no act or failure to act on the part of the Executive shall be
deemed “intentional” if it was due primarily to an error in judgment or negligence, but
shall be deemed “intentional” only if done or omitted to be done by the Executive not in
good faith and without reasonable belief that the Executive’s action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for “Cause” hereunder unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three quarters of the Board then in office at a meeting of the Board called
and held for such purpose, after reasonable notice to the Executive and an opportunity for
the Executive, together with the Executive’s counsel (if the Executive chooses to have
counsel present at such meeting), to be heard before the Board, finding that, in the good
faith opinion of the Board, the Executive had committed an act constituting “Cause” as
herein defined and specifying the particulars thereof in detail. Nothing herein will limit
the right of the Executive or his beneficiaries to contest the validity or propriety of any
such determination.




(e) “Change in Control” means




	 	(i)	 	The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company where such acquisition causes such Person to own (X)
20% or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”) without the approval of
the Incumbent Board as defined in (ii) below or (Y) 35% or more of the
Outstanding Voting Securities of the Company with the approval of the Incumbent
Board; provided, however, that for purposes of this subsection (i), the
following acquisitions shall not be deemed to result in a Change of Control:
(A) any acquisition directly from the Company that is approved by the Incumbent
Board (as defined in subsection (ii), below), (B) any acquisition by the
Company or a subsidiary of the Company, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, (D) any acquisition by any Person
pursuant to a transaction described in clauses (A), (B) and (C) of subsection
(iii) below, or (E) any acquisition by, or other Business Combination (as
defined in (iii) below) with, a person or group of which employees of the
Company or any subsidiary of the Company control a greater than 25% interest (a
“MBO”) but only if the Executive is one of those employees of the Company or
any subsidiary of the Company that are participating in the MBO; provided,
further, that if any Person’s beneficial ownership of the Outstanding Company
Voting Securities reaches or exceeds 20% or 35%, as the case may be, as a
result of a transaction described in clause (A) or (B) above, and such Person
subsequently acquires beneficial ownership of additional voting securities of
the Company, such subsequent acquisition shall be treated as an acquisition
that causes such Person to own 20% or 35% or more, as the case may be, of the
Outstanding Company Voting Securities; and provided, further, that if at least
a majority of the members of the Incumbent Board determines in good faith that
a Person has acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the Outstanding Company
Voting Securities inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares so that such Person beneficially owns
(within the meanings of Rule 13d-3 promulgated under the Exchange Act) less
than 20% of the Outstanding Company Voting Securities, then no Change of
Control shall have occurred as a result of such Person’s acquisition; or






	 	(ii)	 	individuals who, as of the date hereof, constitute the Board
(the “Incumbent Board” (as modified by this clause (ii)) cease for any reason
to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company’s shareholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the Company
in which such person is named as a nominee for director, without objection to
such nomination) shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or






	 	(iii)	 	the consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company or the acquisition of assets of another corporation, or other
transaction (“Business Combination”) excluding, however, such a Business
Combination pursuant to which (A) the individuals and entities who were the
ultimate beneficial owners of voting securities of the Company immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 65% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the entity
resulting from such Business Combination (including, without limitation, an
entity that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or
more subsidiaries), (B) no Person (excluding any employee benefit plan (or
related trust) of the Company, the Company or such entity resulting from such
Business Combination) beneficially owns, directly or indirectly (X) 20% or
more, if such Business Combination is approved by the Incumbent Board or (Y)
35% or more, if such Business Combination is not approved by the Incumbent
Board, of the combined voting power of the then outstanding securities entitled
to vote generally in the election of directors of the entity resulting from
such Business Combination and (C) at least a majority of the members of the
board of directors of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or






	 	(iv)	 	approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company except pursuant to a Business
Combination described in clauses (A), (B) and (C) of subsection (iii), above.






	 	(f)	 	“Employee Benefits” means the perquisites, benefits and service credit for
benefits as provided under any and all employee retirement income and welfare benefit
policies, plans, programs or arrangements in which Executive is entitled to
participate, including without limitation any stock option, performance share,
performance unit, stock purchase, stock appreciation, savings, pension, supplemental
executive retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health, medical/hospital or
other insurance (whether funded by actual insurance or self-insured by the Company or
an Affiliate of the Company), disability, salary continuation, expense reimbursement
and other employee benefit policies, plans, programs or arrangements.






	 	(g)	 	“Incentive Pay” means the annual bonus, incentive or other payment of
compensation under the Management Performance Compensation Plan or, if such Management
Performance Compensation Plan is no longer in effect, the annual bonus, incentive or
other payment of compensation in addition to Base Pay, made or to be made in regard to
services rendered in any year or other period pursuant to any bonus, incentive,
profit-sharing, performance, discretionary pay or similar agreement, policy, plan,
program or arrangement (whether or not funded) of the Company or an Affiliate of the
Company, or any successor thereto.






	 	(h)	 	“Retirement Plans” means the benefit plans of the Company that are intended to
be qualified under Section 401(a) of the Internal Revenue Code and the Company’s
Supplemental Retirement Benefit Plan or any other plan that is a successor thereto if
the Executive was a participant in such Retirement Plan on the date of the occurrence
of the Change in Control.






	 	(i)	 	“Severance Period” means the period of time commencing on the date of the first
occurrence of a Change in Control and continuing until the earlier of (i) the second
anniversary of the occurrence of the Change in Control, or (ii) the Executive’s death;
provided, however, that commencing on each anniversary of the Change in Control, the
Severance Period will automatically be extended for an additional year unless, not
later than 90 calendar days prior to such anniversary date, either the Company or the
Executive shall have given written notice to the other that the Severance Period is not
to be so extended.






	 	(j)	 	“Subsidiary” means an entity in which the Company directly or indirectly
beneficially owns 50% or more of the Outstanding Company Voting Securities.






	 	(k)	 	“Term” means the period commencing as of the date hereof and expiring on the
close of business on December 31,      ; provided, however, that (i) commencing on
January 1,      and each January 1 thereafter, the term of this Agreement will
automatically be extended for an additional year unless, not later than September 30 of
the immediately preceding year, the Company or the Executive shall have given notice
that it or the Executive, as the case may be, does not wish to have the Term extended;
(ii) if a Change in Control occurs during the Term, the Term shall expire and this
Agreement will terminate at the expiration of the Severance Period; and (iii) subject
to the last sentence of Section 9, if, prior to a Change in Control, the Executive
ceases for any reason to be an employee of the Company and any Affiliate of the
Company, thereupon without further action the Term shall be deemed to have expired and
this Agreement will immediately terminate and be of no further effect. For purposes of
this Section 1(k), the Executive shall not be deemed to have ceased to be an employee
of the Company and any Affiliate of the Company by reason of the transfer of
Executive’s employment between the Company and any Affiliate of the Company, or among
any Affiliates of the Company.






	 	(l)	 	“Termination Date” means the date on which the Executive’s employment is
terminated (the effective date of which shall be the date of termination, or such other
date that may be specified by the Executive if the termination is pursuant to Section
3(b) or Section 3(c)).






	 	2.	 	Operation of Agreement. This Agreement will be effective and binding immediately upon
its execution, but, anything in this Agreement to the contrary notwithstanding, except as
provided in Section 9, this Agreement will not be operative unless and until a Change in
Control occurs. Upon the occurrence of a Change in Control at any time during the Term,
without further action, this Agreement shall become immediately operative.





3. Termination Following a Change in Control.




	 	(a)	 	In the event of the occurrence of a Change in Control, the Executive’s
employment may be terminated by the Company or an Affiliate of the Company during the
Severance Period and the Executive shall be entitled to the benefits provided by
Section 4 unless such termination is the result of the occurrence of one or more of the
following events:






(i) The Executive’s death;




	 	(ii)	 	If the Executive becomes permanently disabled within the
meaning of, and begins actually to receive disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, Executive
immediately prior to the Change in Control; or






(iii) Cause.



If, during the Severance Period, the Executive’s employment is terminated by the Company or any
Affiliate of the Company other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), the
Executive will be entitled to the benefits provided by Section 4 hereof.




	 	(b)	 	In the event of the occurrence of a Change in Control, if (but only if) the
Board determines that this Section 3(b) shall be operative following such Change in
Control, the Executive may terminate employment with the Company and any Affiliate of
the Company during the Severance Period with the right to severance compensation as
provided in Section 4 upon the occurrence of one or more of the following events
(regardless of whether any other reason, other than Cause as hereinabove provided, for
such termination exists or has occurred, including without limitation other
employment):






	 	(i)	 	Failure to elect or reelect or otherwise to maintain the
Executive in the office or the position, or a substantially equivalent or
better office or position, of or with the Company and/or an Affiliate of the
Company (or any successor thereto by operation of law or otherwise), as the
case may be, which the Executive held immediately prior to a Change in Control,
or the removal of the Executive as a Director of the Company and/or an
Affiliate of the Company (or any successor thereto) if the Executive shall have
been a Director of the Company and/or an Affiliate of the Company immediately
prior to the Change in Control;






	 	(ii)	 	(A) A significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties attached to the
position with the Company and any Affiliate of the Company which the Executive
held immediately prior to the Change in Control, (B) a reduction in the
aggregate of the Executive’s Base Pay and Incentive Pay received from the
Company and any Affiliate of the Company, or (C) the termination or denial of
the Executive’s rights to Employee Benefits or a reduction in the scope or
value thereof, any of which is not remedied by the Company within 10 calendar
days after receipt by the Company of written notice from the Executive of such
change, reduction or termination, as the case may be;






	 	(iii)	 	The liquidation, dissolution, merger, consolidation or
reorganization of the Company or the transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by liquidation,
merger, consolidation, reorganization, transfer or otherwise) to which all or
substantially all of its business and/or assets have been transferred (by
operation of law or otherwise) assumed all duties and obligations of the
Company under this Agreement pursuant to Section 11(a);






	 	(iv)	 	The Company relocates its principal executive offices (if such
offices are the principal location of Executive’s work), or requires the
Executive to have his principal location of work changed, to any location that,
in either case, is in excess of 50 miles from the location thereof immediately
prior to the Change in Control, or requires the Executive to travel away from
his office in the course of discharging his responsibilities or duties
hereunder at least 20% more (in terms of aggregate days in any calendar year or
in any calendar quarter when annualized for purposes of comparison to any prior
year) than was required of Executive in any of the three full years immediately
prior to the Change in Control without, in either case, his prior written
consent; or






	 	(v)	 	Without limiting the generality or effect of the foregoing, any
material breach of this Agreement by the Company or any successor thereto which
is not remedied by the Company within 10 calendar days after receipt by the
Company of written notice from the Executive of such breach.






	 	(c)	 	Notwithstanding anything contained in this Agreement to the contrary, in the
event of a Change in Control, the Executive may terminate employment with the Company
and any Affiliate of the Company for any reason, or without reason, during the 30-day
period immediately following the first anniversary of the first occurrence of a Change
in Control with the right to severance compensation as provided in Section 4.






	 	(d)	 	A termination by the Company pursuant to Section 3(a) or by the Executive
pursuant to Section 3(b) or Section 3(c) will not affect any rights that the Executive
may have pursuant to any agreement, policy, plan, program or arrangement of the Company
or an Affiliate of the Company providing Employee Benefits, which rights shall be
governed by the terms thereof.





4. Severance Compensation.




	 	(a)	 	If, following the occurrence of a Change in Control, the Company or an
Affiliate of the Company terminates the Executive’s employment during the Severance
Period other than pursuant to Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or if the
Executive terminates his employment pursuant to Section 3(b) (if Section 3(b) is
operative) or Section 3(c), the Company will pay to the Executive the amounts described
in Annex A within five business days after the Termination Date and will continue to
provide to the Executive the benefits described in Annex A for the periods described
therein.






	 	(b)	 	Without limiting the rights of the Executive at law or in equity, if the
Company fails to make any payment or provide any benefit required to be made or
provided hereunder on a timely basis, the Company will pay interest on the amount or
value thereof at an annualized rate of interest equal to the so-called composite “prime
rate” as quoted from time to time during the relevant period in the Midwest Edition of
The Wall Street Journal, plus 4%. Such interest will be payable as it accrues on
demand. Any change in such prime rate will be effective on and as of the date of such
change.






	 	(c)	 	Notwithstanding any provision of this Agreement to the contrary, the parties’
respective rights and obligations under this Section 4 and under Sections 5, 7, 8, 9
and 13 will survive any termination or expiration of this Agreement or the termination
of the Executive’s employment following a Change in Control for any reason whatsoever.






	 	(d)	 	Unless otherwise expressly provided by the applicable plan, program or
agreement, after the occurrence of a Change in Control, the Company shall pay in cash
to the Executive a lump sum amount equal to the value of any annual bonus (including,
without limitation, incentive-based annual cash bonuses and performance units, but not
including any equity-based compensation or compensation provided under a qualified
plan) earned or accrued with respect to the Executive’s service during the performance
period or periods that includes the date on which the Change in Control occurred,
disregarding any applicable vesting requirements; provided that (i) such amount shall
be calculated at the plan target or payout rate, but prorated to base payment only on
the portion of the Executive’s service that had elapsed during the applicable
performance period; and (ii) such amount shall be reduced by any amount actually paid
to the Executive under the terms of such Plan. Such payment shall take into account
service rendered through the payment date and shall be made at the earlier of (i) the
date prescribed for payment pursuant to the applicable plan, program or agreement, or
(ii) within five business days after the Termination Date.






	 	(e)	 	Notwithstanding any provision to the contrary in any applicable plan, program
or agreement, upon the occurrence of a Change in Control, all equity incentive awards
held by the Executive shall become fully vested and all stock options held by the
Executive shall become fully exercisable.






	 	5.	 	Limitation on Payments and Benefits. Notwithstanding any provision of this Agreement
to the contrary, if any amount or benefit to be paid or provided under this Agreement would be
an “Excess Parachute Payment,” within the meaning of Section 280G of the Internal Revenue Code
of 1986, as amended (the “Code”), or any successor provision thereto, but for the application
of this sentence, then the payments and benefits to be paid or provided under this Agreement
shall be reduced to the minimum extent necessary (but in no event to less than zero) so that
no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute
Payment; provided, however, that the foregoing reduction shall be made only if and to the
extent that such reduction would result in an increase in the aggregate payments and benefits
to be provided, determined on an after-tax basis (taking into account the excise tax imposed
pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by
any comparable provision of state law, and any applicable federal, state and local income
taxes). The determination of whether any reduction in such payments or benefits to be
provided under this Agreement or otherwise is required pursuant to the preceding sentence
shall be made at the expense of the Company, if requested by the Executive or the Company, by
the Company’s independent accountants. The fact that the Executive’s right to payments or
benefits may be reduced by reason of the limitations contained in this Section 5 shall not of
itself limit or otherwise affect any other rights of the Executive other than pursuant to this
Agreement. In the event that any payment or benefit intended to be provided under this
Agreement or otherwise is required to be reduced pursuant to this Section 5, the Executive
shall be entitled to designate the payments and/or benefits to be so reduced in order to give
effect to this Section 5. The Company shall provide the Executive with all information
reasonably requested by the Executive to permit the Executive to make such designation. In
the event that the Executive fails to make such designation within 10 business days of the
Termination Date, the Company may effect such reduction in any manner it deems appropriate.






	 	6.	 	No Mitigation Obligation. The Company hereby acknowledges that it will be difficult
and may be impossible for the Executive to find reasonably comparable employment following the
Termination Date. Accordingly, the payment of the severance compensation by the Company to
the Executive in accordance with the terms of this Agreement is hereby acknowledged by the
Company to be reasonable, and the Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise, nor will any
profits, income, earnings or other benefits from any source whatsoever create any mitigation,
offset, reduction or any other obligation on the part of the Executive hereunder or otherwise,
except as expressly provided in the last sentence of Paragraph 3 set forth on Annex A.





7. Legal Fees and Expenses.




	 	(a)	 	It is the intent of the Company that the Executive not be required to incur
legal fees and the related expenses associated with the interpretation, enforcement or
defense of Executive’s rights under this Agreement by litigation or otherwise because
the cost and expense thereof would substantially detract from the benefits intended to
be extended to the Executive hereunder. Accordingly, if it should appear to the
Executive that the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes or threatens to
take any action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or proceeding designed to deny, or to recover from, the
Executive the benefits provided or intended to be provided to the Executive hereunder,
the Company irrevocably authorizes the Executive from time to time to retain counsel of
Executive’s choice, at the expense of the Company as hereafter provided, to advise and
represent the Executive in connection with any such interpretation, enforcement or
defense, including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Company or any Director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the Company
and such counsel, the Company irrevocably consents to the Executive’s entering into an
attorney-client relationship with such counsel, and in that connection the Company and
the Executive agree that a confidential relationship shall exist between the Executive
and such counsel. Without respect to whether the Executive prevails, in whole or in
part, in connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys’ and related fees and expenses
incurred by the Executive in connection with any of the foregoing.






	 	(b)	 	Without limiting the obligations of the Company pursuant to Section 7(a)
hereof, in the event a Change in Control occurs, the performance of the Company’s
obligations under this Agreement, including, without limitation, this Section 7 and
Annex A, shall be secured by amounts deposited or to be deposited in trust pursuant to
certain trust agreements to which the Company shall be a party providing that the
benefits to be provided hereunder and the fees and expenses of counsel selected from
time to time by the Executive pursuant to Section 7(a) shall be paid, or reimbursed to
the Executive if paid by the Executive, either in accordance with the terms of such
trust agreements, or, if not so provided, on a regular, periodic basis upon
presentation by the Executive to the trustee of a statement or statements prepared by
such counsel in accordance with its customary practices. Any failure by the Company to
satisfy any of its obligations under this Section 7(b) shall not limit the rights of
the Executive hereunder. Subject to the foregoing, the Executive shall have the status
of a general unsecured creditor of the Company and shall have no right to, or security
interest in, any assets of the Company or any Affiliate of the Company.





8. Competitive Activity; Confidentiality; Nonsolicitation.




	 	(a)	 	Acknowledgements and Agreements. The Executive hereby acknowledges and
agrees that in the performance of the Executive’s duties to the Company during the
Term, the Executive will be brought into frequent contact, either in person, by
telephone or through the mails, with existing and potential customers of the Company
throughout the United States. The Executive also agrees that trade secrets and
confidential information of the Company, more fully described in Section 8(j) of this
Agreement, gained by the Executive during the Executive’s association with the Company,
have been developed by the Company through substantial expenditures of time, effort and
money and constitute valuable and unique property of the Company. The Executive
further understands and agrees that the foregoing makes it necessary for the protection
of the business of the Company that the Executive not compete with the Company during
the Term and not compete with the Company for a reasonable period thereafter, as
further provided in the following subsections.






	 	(b)	 	Covenants During the Term. During the Term and prior to the
Termination Date, the Executive will not compete with the Company anywhere within the
United States. In accordance with this restriction, but without limiting its terms,
during the term of the Executive’s employment, the Executive will not:






	 	(i)	 	enter into or engage in any business which competes with the
business of the Company;






	 	(ii)	 	solicit customers, business, patronage or orders for, or sell,
any products and services in competition with, or for any business that
competes with, the business of the Company;






	 	(iii)	 	divert, entice or otherwise take away any customers, business,
patronage or orders of the Company or attempt to do so; or






	 	(iv)	 	promote or assist, financially or otherwise, any person, firm,
association, partnership, corporation or other entity engaged in any business
which competes with the business of the Company.






	 	(c)	 	Covenants Following Termination. For a period of one (1) year
following the Termination Date, if the Executive has received or is receiving benefits
under this Agreement, the Executive will not:






	 	(i)	 	enter into or engage in any business which competes with the
Company’s business within the Restricted Territory (as defined in Section
8(g));






	 	(ii)	 	solicit customers, business, patronage or orders for, or sell,
any products and services in competition with, or for any business, wherever
located, that competes with, the Company’s business within the Restricted
Territory;






	 	(iii)	 	divert, entice or otherwise take away any customers, business,
patronage or orders of the Company within the Restricted Territory, or attempt
to do so; or






	 	(iv)	 	promote or assist, 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.






	 	(d)	 	Indirect Competition. For the purposes of Sections 8(b) and 8(c),
inclusive, but without limitation thereof, the Executive will be in violation thereof
if the Executive engages in any or all of the activities set forth therein directly as
an individual on the Executive’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 Executive or the Executive’s spouse, child or parent owns,
directly or indirectly, individually or in the aggregate, more than five percent (5%)
of the outstanding stock.






	 	(e)	 	The Company. For the purposes of this Section 8, the Company shall
include any and all direct and indirect subsidiary, parent, affiliated, or related
companies of the Company for which the Executive worked or had responsibility at the
time of termination of the Executive’s employment and at any time during the two (2)
year period prior to such termination.






	 	(f)	 	The Company’s Business. For the purposes of Sections 8(b), 8(c), 8(k)
and 8(l), 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.






	 	(g)	 	Restricted Territory. For the purposes of Section 8(c), the Restricted
Territory shall be defined as and limited to:






	 	(i)	 	the geographic area(s) within a one hundred (100) mile radius
of any and all Company location(s) in, to, or for which the Executive worked,
to which the Executive was assigned or had any responsibility (either direct or
supervisory) at the time of termination of the Executive’s employment and at
any time during the two (2) year period prior to such termination; and






	 	(ii)	 	all of the specific customer accounts, whether within or
outside of the geographic area described in (i) above, with which the Executive
had any contact or for which the Executive had any responsibility (either
direct or supervisory) at the time of termination of the Executive’s employment
and at any time during the two (2) year period prior to such termination.






	 	(h)	 	Extension. If it shall be judicially determined that the Executive has
violated any of the Executive’s obligations under Section 8(c), then the period
applicable to each obligation that the Executive 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.






	 	(i)	 	Non-Solicitation. The Executive will not directly or indirectly at any
time solicit or induce or attempt to solicit or induce any employee(s), sales
representative(s), agent(s) or consultant(s) of the Company and/or of its parent, or
its other subsidiary, affiliated or related companies to terminate their employment,
representation or other association with the Company and/or its parent or its other
subsidiary, affiliated or related companies.






(j) Further Covenants.




	 	(i)	 	The Executive will keep in strict confidence, and will not,
directly or indirectly, at any time during or after the Executive’s employment
with the Company, disclose, furnish, disseminate, make available or, except in
the course of performing the Executive’s duties of employment, use 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
Executive 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 Executive specifically acknowledges that
all such confidential information, whether reduced to writing, maintained on
any form of electronic media, or maintained in the Executive’s mind or memory
and whether compiled by the Company, and/or the Executive, 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 Executive during the
Executive’s employment with the Company (except in the course of performing the
Executive’s duties and obligations to the Company) or after the termination of
the Executive’s employment shall constitute a misappropriation of the Company’s
trade secrets.






	 	(ii)	 	The Executive agrees that upon termination of the Executive’s
employment with the Company, for any reason, the Executive shall 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 8(j)(i) of this Agreement. In the event that
such items are not so returned, the Company will have the right to charge the
Executive for all reasonable damages, costs, attorneys’ fees and other expenses
incurred in searching for, taking, removing and/or recovering such property.






(k) Discoveries and Inventions; Work Made for Hire.




	 	(i)	 	The Executive hereby assigns and agrees to assign to the
Company, its successors, assigns or nominees, all of the Executive’s rights to
any discoveries, inventions and improvements, whether patentable or not, made,
conceived or suggested, either solely or jointly with others, by the Executive
while in the Company’s employ, whether in the course of the Executive’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 Executive’s
employment and made, conceived or suggested by the Executive, either solely or
jointly with others, within one (1) year following termination of the
Executive’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 Executive will execute and deliver to the
Company, at any time during or after the Executive’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.






	 	(ii)	 	The Executive acknowledges that, to the extent permitted by
law, 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 the Executive during
the Executive’s employment with the Company 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.






	 	(l)	 	Communication of Contents of Agreement. During the Executive’s
employment and for one (1) year thereafter, the Executive will communicate the contents
of this Agreement to any person, firm, association, partnership, corporation or other
entity which the Executive intends to be employed by, associated with, or represent and
which is engaged in a business that is competitive to the business of the Company.






	 	(m)	 	Relief. The Executive acknowledges and agrees that the remedy at law
available to the Company for breach of any of the Executive’s obligations under this
Agreement would be inadequate. The Executive therefore agrees that, in addition to any
other rights or remedies that the Company may have at law or in equity, temporary and
permanent injunctive relief may be granted in any proceeding which may be brought to
enforce any provision contained in Sections 8(b), 8(c), 8(i), 8(j), 8(k) and 8(l),
inclusive, of this Agreement, without the necessity of proof of actual damage.






	 	(n)	 	Reasonableness. The Executive acknowledges that the Executive’s
obligations under this Section 8 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 Executive was to violate such obligations. The Executive 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 Executive acknowledges constitutes good, valuable and
sufficient consideration.






	 	9.	 	Employment Rights. Nothing expressed or implied in this Agreement will create any
right or duty on the part of the Company or the Executive to have the Executive remain in the
employment of the Company or any Affiliate of the Company prior to or following any Change in
Control. Any termination of employment of the Executive or the removal of the Executive from
the office or position in the Company or any Affiliate of the Company that occurs following
the commencement of any discussion with a third person that ultimately results in a Change in
Control, shall be deemed to be a termination or removal of the Executive after a Change in
Control for purposes of this Agreement.






	 	10.	 	Withholding of Taxes. The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes as the Company is required to withhold
pursuant to any applicable law, regulation or ruling.





11. Successors and Binding Agreement.




	 	(a)	 	The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or substantially
all of the business or assets of the Company, by agreement in form and substance
reasonably satisfactory to the Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be required to
perform if no such succession had taken place. This Agreement will be binding upon and
inure to the benefit of the Company and any successor to the Company, including without
limitation any persons acquiring directly or indirectly all or substantially all of the
business or assets of the Company whether by purchase, merger, consolidation,
reorganization or otherwise (and such successor shall thereafter be deemed the
“Company” for the purposes of this Agreement), but will not otherwise be assignable,
transferable or delegable by the Company.






	 	(b)	 	This Agreement will inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors, administrators, successors,
heirs, distributees and legatees.






	 	(c)	 	This Agreement is personal in nature and neither of the parties hereto shall,
without the consent of the other, assign, transfer or delegate this Agreement or any
rights or obligations hereunder except as expressly provided in Sections 11(a) and
11(b). Without limiting the generality or effect of the foregoing, the Executive’s
right to receive payments hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest, or otherwise, other than by a
transfer by Executive’s will or by the laws of descent and distribution and, in the
event of any attempted assignment or transfer contrary to this Section 11(c), the
Company shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.






	 	12.	 	Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or
five business days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight courier service such as FedEx, UPS, or Purolator, addressed to
the Company (to the attention of the Secretary of the Company) at its principal executive
office and to the Executive at his principal residence, or to such other address as any party
may have furnished to the other in writing and in accordance herewith, except that notices of
changes of address shall be effective only upon receipt.






	 	13.	 	Compliance with Section 409A of the Code. To the extent applicable, it is intended
that this Agreement comply with the provisions of Section 409A of the Code. This Agreement
shall be administered in a manner consistent with this intent, and any provision that would
cause the Agreement 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 Company without the
consent of the Executive). In particular, to the extent the Executive becomes entitled to
receive payment subject to Section 409A upon an event that does not constitute a permitted
distribution event under Section 409A(a)(2) of the Code, then notwithstanding anything to the
contrary in this Agreement, payment will be made to the Executive on the earlier of (a) the
Executive’s “separation from service” with the Company (determined in accordance with Section
409A); provided, however, that if the Executive is a “specified employee”
(within the meaning of Section 409A), the Executive’s date of payment shall be made on the
date which is 6 months after the date of the Executive’s separation from service with the
Company or (b) the Executive’s death.






	 	14.	 	Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the
State of Ohio, without giving effect to the principles of conflict of laws of such State.






	 	15.	 	Validity. If any provision of this Agreement or the application of any provision
hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other person or
circumstance will not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.






	 	16.	 	Miscellaneous. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing signed by the Executive
and the Company. No waiver by either party hereto at any time of any breach by the other
party hereto or compliance with any condition or provision of this Agreement to be performed
by such other party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or representations, oral or
otherwise, expressed or implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. References to Sections are
to Sections of this Agreement.






	 	17.	 	Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the
same agreement.




1









IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered
as of the date first above written.




BRUSH ENGINEERED MATERIALS INC.




By:


Name:


Title:




[Executive]



2



Annex A




SEVERANCE COMPENSATION




(1) A lump sum payment in an amount equal to two times the sum of (A) Base Pay (at the highest
rate in effect for any period prior to the Termination Date), plus (B) Incentive Pay (in an amount
equal to not less than the higher of (1) the highest aggregate Incentive Pay earned in any fiscal
year ending after the Change in Control or in any of the three fiscal years immediately preceding
the year in which the Change in Control occurred or (2) the plan target for the year in which the
Change in Control occurred).



(2) A lump sum payment in an amount equal to the present value of the bonuses the Executive
would have received under any Long Term Cash Incentive Plan of the Company for performance periods
in effect at the time of the termination of the Executive’s employment had he continued to be
employed through the period covered by any such plan, assuming payout under such plans at the plan
target rate, reduced by any amounts actually paid to the Executive under the terms of any such
plan. In determining present value for this purpose, there shall be applied a discount factor
equal to the coupon rate on general full-faith-and-credit obligations of the U.S. Treasury having a
maturity of five years and issued on the date of the termination of the Executive’s employment.



(3) For a period of 24 months following the Termination Date (the “Continuation Period”), the
Company will arrange to provide the Executive with Employee Benefits that are welfare benefits
including, without limitation, retiree medical and life insurance (but not perquisites, stock
option, performance share, performance unit, stock purchase, stock appreciation or similar
compensatory benefits or benefits covered by (4) below) substantially similar to those that the
Executive was receiving or entitled to receive immediately prior to the Termination Date (or, if
greater, immediately prior to the reduction, termination, or denial described in Section 3(b)(ii)).
If and to the extent that any benefit described in this Paragraph 3 is not or cannot be paid or
provided under any policy, plan, program or arrangement of the Company or any Affiliate of the
Company, as the case may be, then the Company will itself pay or provide for the payment to the
Executive, his dependents and beneficiaries, of such Employee Benefits along with, in the case of
any benefit described in this Paragraph 3 which is subject to tax because it is not or cannot be
paid or provided under any such policy, plan, program or arrangement of the Company or any
Affiliate of the Company, an additional amount such that after payment by the Executive, or his
dependents or beneficiaries, as the case may be, of all taxes so imposed, the recipient retains an
amount equal to such taxes. Notwithstanding the foregoing, or any other provision of the
Agreement, for purposes of determining the period of continuation coverage to which the Executive
or any of his dependents is entitled pursuant to Section 4980B of the Code (or any successor
provision thereto) under the Company’s medical, dental and other group health plans, or successor
plans, the Executive’s “qualifying event” shall be the termination of the Continuation Period.
Further, for purposes of the immediately preceding sentence and for any other purpose including,
without limitation, the calculation of service or age to determine Executive’s eligibility for
benefits under any retiree medical benefits or life insurance plan or policy, the Executive shall
be considered to have remained actively employed on a full-time basis through the termination of
the Continuation Period. Without otherwise limiting the purposes or effect of Section 6, Employee
Benefits otherwise receivable by the Executive pursuant to this Paragraph 3 will be reduced to the
extent comparable welfare benefits are actually received by the Executive from another employer
during the Continuation Period following the Executive’s Termination Date, and any such benefits
actually received by the Executive shall be reported by the Executive to the Company.



(4) In addition to the retirement income and other benefits to which Executive is entitled
under the Company’s Retirement Plans with respect to Executive’s employment through the Termination
Date, a lump sum payment in an amount equal to the present value of the excess of (x) the
retirement income and other benefits that would be payable to the Executive under the Retirement
Plans if Executive had continued to be employed as an active participant in the Company’s
Retirement Plans through the Continuation Period given the Executive’s Base Pay and Incentive Pay
(as determined in Paragraph 1) (without regard to any amendment to the Retirement Plans made
subsequent to a Change in Control which reduces the retirement income or other benefits
thereunder), over (y) the retirement income and other benefits that the Executive is entitled to
receive (either immediately or on a deferred basis) under the Retirement Plans. For purposes of
this Paragraph 4, present value shall be determined by applying a discount factor equal to the
annual rate of interest on 30-year U.S. Treasury securities issued on the date of the termination
of the Executive’s employment (or, if no such securities are issued on such date, on the most
recent date preceding the date of the termination of the Executive’s employment on which such
securities are issued), and by using the 1983 Group Annuity Mortality Table (50% male/50% female).



(5) If the Executive is entitled to receive or has received, during the year in which the
Termination Date occurs, cash payments from the Company in connection with which the Executive
agreed to receive current cash payments in lieu of benefits under the Company’s Supplemental
Retirement Benefit Plan (SERP), a lump sum payment in an amount equal to two times the aggregate
amount paid or payable to the Executive by the Company in lieu of benefits under the SERP.



(6) If the Executive is receiving or has been granted cash payments from the Company which
have been designated by the Board as special awards, a lump sum payment equal to two times the
aggregate award designated by the Board of Directors for the year in which the Termination Date
occurs.



(7) A lump sum payment equal to the cash value of the club dues and financial counseling
benefits that the Executive would have been entitled to receive during the Continuation Period
based on the annual value of such club dues and financial counseling benefits immediately before
the Termination Date or, if greater, immediately before the Change in Control; provided that the
Executive must have been receiving such benefits immediately prior to either the Termination Date
or the date of the Change in Control.



(8) Reasonable fees for outplacement services, by a firm selected by the Executive, at the
expense of the Company in an amount not in excess of $20,000.




3