exv10w34






Exhibit 10ah




BRUSH ENGINEERED MATERIALS INC.




Appreciation Rights Agreement



     WHEREAS, [GRANTEE NAME] (the “Grantee”) is an employee of Brush Engineered Materials Inc. (the
“Corporation”) or a Subsidiary.



     WHEREAS, the execution of an agreement in the form hereof has been authorized by a resolution
of the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of the
Corporation that was duly adopted on February 2, 2009.



     NOW, THEREFORE, the Corporation hereby confirms to the Grantee the grant, effective on
February 2, 2010 (the “Date of Grant”), pursuant to the 2006 Stock Incentive Plan (the “Plan”), of
                     Free-standing Appreciation Rights (“SARs”) subject to the terms and conditions of the
Plan and the terms and conditions described below.



     1. Definitions.



          As used in this Agreement:




          (A) “Base Price” means $           which was the Market Value per Share on the Date of Grant.




          (B) “Detrimental Activity” shall have the meaning set forth in Section 7 of this Agreement.




          (C) “Spread” means the excess of the Market value per Share on the date when an SAR is
exercised over the Base Price.




          (D) Capitalized terms used herein without definition shall have the meanings assigned to them
in the Plan.




     2. Grant of SARs.



          The Corporation hereby grants to the Grantee the number of SARs set forth above. The SARs are
a right to receive Common Shares in an amount equal to 100% of the Spread at the time of exercise.




     3. Vesting of SARs.



          (A) The SARs granted hereby shall become exercisable after the Grantee shall have remained in
the continuous employ of the Corporation or any Subsidiary for three years from the Date of Grant,
unless the Grantee ceases to be an employee of the Corporation or any Subsidiary as described in
Section 5(C) of this Agreement.







 









 








          (B) Notwithstanding the preceding paragraph, the SARs granted hereby shall become immediately
exercisable in full if (i) the Grantee should die while in the employ of the Corporation or any
subsidiary; (ii) the Grantee should become permanently disabled while in the employ of the
Corporation; or (iii) if a Change in Control occurs.




          (C) For purposes of this Agreement, “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 Corporation 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 Corporation entitled to vote generally
in the election of directors (the “Outstanding Corporation 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
Corporation 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 Corporation that is approved by the Incumbent Board (as defined in
subsection (ii), below), (B) any acquisition by the Corporation or a
subsidiary of the Corporation, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation, (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 Corporation or any subsidiary of the Corporation control a
greater than 25% interest (a “MBO”) but only if the Executive is one of
those employees of the Corporation or any subsidiary of the Corporation that
are participating in the MBO; provided, further, that if any Person’s
beneficial ownership of the Outstanding Corporation 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 Corporation, 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 Corporation 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 Corporation 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



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Outstanding Corporation 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 Corporation’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 Corporation 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
Corporation 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 Corporation
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 Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries),
(B) no Person (excluding any employee benefit plan (or related trust) of the
Corporation, the Corporation 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



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



     4. Exercise of SARs.



          (A) To the extent exercisable as provided in Section 3 of this agreement, SARs may be
exercised in whole or in part by giving notice to the Corporation specifying the number of SARs to
be exercised.




          (B) The Corporation will issue to the Grantee the number of Common Shares that equals the
Market Price per Share divided into the Spread on the date of exercise rounded down to the nearest
whole share.




     5. Termination of SARs.



     The SARs granted hereby shall terminate upon the earliest to occur of the following:



          (A) 190 days after the Grantee ceases to be an employee of the Corporation or a Subsidiary,
unless he ceases to be such employee by reason of death or in a manner described in clause
(B), (C) or (F) below;




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




          (C) Three years after the Grantee ceases to be an employee of the Corporation or a Subsidiary
if the Grantee is at the time of such termination (i) at least age 65 or (ii) at least age 55 and
has completed at least 10 years of continuous employment with the Corporation or a Subsidiary;




          (D) One year after the death of the Grantee, if the Grantee dies while an employee of the
Corporation or a subsidiary or within the period specified in (A) or (B) above which is applicable
to the Grantee;




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




          (F) Immediately if the Grantee engages in any Detrimental Activity (as hereinafter defined).




          6. Effect of Detrimental Activity.




          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, and the Board shall
so find:




          (A) All SARs held by the Grantee, whether or not exercisable, shall be forfeited to the
Corporation.







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          (B) Return to the Corporation all Common Shares that the Grantee has not disposed of that were
purchased pursuant to this Agreement, and




          (C) With respect to any Common Shares that the Grantee received upon exercise of the SARs that
have been disposed of pay to the Corporation in cash the amount equal to the Spread applicable to
such Common Shares on the date of exercise of such SARs.



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) Engaging in any activity in violation of the Section entitled “Competitive Activity;
Confidentiality; Nonsolicitation” in the Severance Agreement between the Corporation and the
Optionee, if such agreement is in effect on the date hereof, or in violation of any corresponding
provision in any other agreement between the Corporation and the Optionee in effect on the date
hereof providing for the payment of severance compensation; or





     (i) 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 Corporation 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 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




     (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 Optionee’s
termination date:







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     (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 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 Corporation.” For the purposes of this Section 7(A)(ii), the “Corporation”
shall include any and all direct and indirect subsidiaries, parents, and affiliated, or related
companies of the Corporation 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 Corporation’s Business.” For the purposes of this Section 7 inclusive, the
Corporation’s business is defined to be the manufacture, marketing and sale of high performance
engineered materials serving global telecommunications and computer, magnetic and optical data
storage, aerospace and defense, automotive electronics, industrial components and appliance
markets, as further described in any and all manufacturing, marketing and sales manuals and
materials of the Corporation 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 7(A)(ii)(b), the Restricted
Territory shall be defined as and limited to:







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     (1) the geographic area(s) within a one hundred mile radius of
any and all Corporation 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.




     (B) Extension. If it shall be judicially determined that the
Optionee has violated any of the Optionee’s obligations under Section
7(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 7(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
Corporation and/or of its parents, or its other subsidiaries or affiliated or related companies to
terminate their employment, representation or other association with the Corporation and/or its
parent or its other subsidiary or affiliated or related companies.




          (C) Further Covenants. Except as otherwise provided in Section 7(A)(i), Detrimental
Activity shall also include:





     (ii) directly or indirectly, at any time during or after the Optionee’s
employment with the Corporation, 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 Corporation 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 Corporation’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 Corporation, 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



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disclosure or use, that reasonable efforts have been made by the Corporation to
maintain the secrecy of such information, that such information is the sole property
of the Corporation and that any retention and use of such information by the
Optionee during the Optionee’s employment with the Corporation (except in the course
of performing the Optionee’s duties and obligations to the Corporation) or after the
termination of the Optionee’s employment shall constitute a misappropriation of the
Corporation’s trade secrets.




     (iii) Upon termination of the Optionee’s employment with the Corporation, for
any reason, the Optionee’s failure to return to the Corporation, in good condition,
all property of the Corporation, 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 7(A)(i),
Detrimental Activity shall also include the failure or refusal of the Optionee to assign to the
Corporation, 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 Corporation’s employ, whether in the course of
the Optionee’s employment with the use of the Corporation’s time, material or facilities or that is
in any way within or related to the existing or contemplated scope of the Corporation’s business.
Any discovery, invention or improvement relating to any subject matter with which the Corporation
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
Corporation’s time, materials or facilities. Upon request by the Corporation with respect to any
such discoveries, inventions or improvements, the Optionee will execute and deliver to the
Corporation, 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 Corporation
may desire, and all proper assignments therefor, when so requested, at the expense of the
Corporation, but without further or additional consideration.




          (E) Work Made For Hire. Except as otherwise provided in Section 7(A)(i), Detrimental
Activity shall also include violation of the Corporation’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 Corporation. 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 Corporation. The item will
recognize the Corporation as the copyright owner, will contain all proper copyright notices, e.g.,
"(creation date) [Corporation 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.







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          (F) Termination for Cause. Except as otherwise provided in Section 7(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:





     (iv) 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 Corporation or any affiliate of the Corporation;




     (v) committed intentional wrongful damage to property of the
Corporation or any affiliate of the Corporation; or




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




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



          (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 Corporation 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 Corporation.




          (H) Reasonableness. The Optionee acknowledges that the Optionee’s obligations under
this Section 4 are reasonable in the context of the nature of the Corporation’s business and the
competitive injuries likely to be sustained by the Corporation 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 Corporation to perform its obligations under
this Agreement and by other consideration, which the Optionee acknowledges constitutes good,
valuable and sufficient consideration.




     8. Transferability.



          No SAR granted hereunder may be transferred by the Grantee other than by will or the laws of
descent and distribution and may be exercised during a Grantee’s lifetime only by the Grantee or,
in the event of the Grantee legal incapacity, by the Grantee’s guardian or legal representative
acting in a fiduciary capacity on behalf of the Grantee under state law and court supervision.




     9. Compliance with Law.



          The SARs granted hereby shall not be exercisable if such exercise would involve a violation of
any applicable federal or state securities law, and the Corporation 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






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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.




     10. Adjustments.



          In the event of any change in the aggregate number of outstanding Common Shares by reason of
(a) any stock dividend, stock split, combination of shares, recapitalization or other change in the
capital structure of the Corporation, or (b) any merger, consolidation, spin-off, spin-out,
split-off, split-up, reorganization, partial or complete liquidation of the Corporation or other
distribution of assets, issuance of rights or warrants to purchase securities of the Corporation,
or (c) any other corporate transaction or event having an effect similar to any of the foregoing,
then the Committee shall adjust the number of SARs covered by this Agreement and the Base Price in
such manner as may be appropriate to prevent the dilution or enlargement of the rights of the
Grantee that would otherwise result from such event.




     11. Withholding Taxes.



          To the extent that the Corporation is required to withhold federal, state, local or foreign
taxes in connection with the exercise of the SARs, and the amounts available to the Corporation for
such withholding are insufficient, it shall be a condition to such exercise that the Grantee make
arrangements satisfactory to the Corporation for payment of the balance of such taxes required to
be withheld. The Grantee may elect that all or any part of such withholding requirement be
satisfied by retention by the Corporation of a portion of the Common Shares to be delivered to the
Grantee. If such election is made, the shares so retained shall be credited against such
withholding requirement at the Market Value per Share on the date of such exercise. In no event
shall the Market Value per Share of the Common Shares to be withheld and/or delivered pursuant to
this Section to satisfy applicable withholding taxes in connection with the benefit exceed the
minimum amount of taxes required to be withheld.




     12. 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.




     13. No Employment Contract; Right to Terminate Employment.



          The grant of the SARs under this Agreement to the Grantee is a voluntary, discretionary award
being made on a one-time basis and it does not constitute a commitment to make any future awards.
The grant of the SARs and any payments made hereunder will not be considered salary or other
compensation for purposes of any severance pay or similar allowance, except as otherwise required
by law. Nothing in this Agreement will give the Grantee any right to continue employment with the
Corporation or any Subsidiary, as the case may be, or interfere in any way with the right of the
Corporation or a Subsidiary to terminate the employment of the Grantee at any time.







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     14. 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.




     15. Information.



          Information about the Grantee and the Grantee’s participation in the Plan may be collected,
recorded and held, used and disclosed for any purpose related to the administration of the Plan.
The Grantee understands that such processing of this information may need to be carried out by the
Corporation and its Subsidiaries and by third party administrators whether such persons are located
within the Grantee’s country or elsewhere, including the United States of America. The Grantee
consents to the processing of information relating to the Grantee and the Grantee’s participation
in the Plan in any one or more of the ways referred to above.




     16. 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 respect to the SARs without the Grantee’s consent.




     17. 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.




     18. Governing Law.



          This agreement is made under, and shall be construed in accordance with the internal
substantive laws of the State of Ohio.




     The undersigned hereby acknowledges receipt of an executed original of this Appreciation
Rights Agreement and accepts the Appreciation Rights granted thereunder on the terms and conditions
set forth herein and in the Plan.



	 	 	 	 	 
	Date: 
	 
	 	 

	 	 	 	  

	 
	 	 	[GRANTEE NAME]






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          Executed in the name and on behalf of the Corporation at Cleveland, Ohio as of the 15th day of
March 2010.




	 	 	 	 	 
	 	BRUSH ENGINEERED MATERIALS INC.

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 




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