exv10w2









Exhibit 10.2



 




    SECOND
    AMENDMENT

    TO

    BRUSH ENGINEERED MATERIALS INC.

    AMENDED AND RESTATED EXECUTIVE DEFERRED COMPENSATION PLAN
    II



 



    The Brush Engineered Materials Inc. Amended and Restated
    Executive Deferred Compensation Plan II (the
    “Plan”), adopted on June 29, 2008, is here by
    amended in the following respects effective July 28, 2009.



 



    1. Section 2.20 of the Plan is amended and restated
    as follows:



 



    2.20 Valuation Date means each day the New York
    Stock Exchange is open.



 



    2. A new Section 2.21 is added to the Plan to
    provide as follows:



 



    2.21 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 in
    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 at least one Participant 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.



 



    3. Section 5.2 of the Plan is amended and restated
    as follows:



 



    5.2 Investment Return.  Each
    Account shall be deemed to bear an investment return as if
    invested in the manner elected by the Participant from a list of
    investment funds from time to time determined by the
    Compensation Committee. The Compensation Committee may delegate
    to the Company’s Retirement Plan Investment Committee the
    duty and authority to determine the investment funds to be used
    for this purpose under the Plan, including the discretion to
    eliminate, add, or substitute investment funds from time to
    time. Deemed investment return under the Plan shall be
    determined from the date of crediting of an amount to the
    Participant’s Account (including deemed income thereon)
    through the date which is three days prior to distribution of
    such amount from the Account in accordance with procedures
    established by the Company. A Participant shall be permitted to
    change his investment election under the Plan for any portion or
    all of his Account as of any day the New York Stock Exchange is
    open in accordance with such rules and procedures as the Company
    shall establish for this purpose. The Company shall have no
    obligation to actually invest funds pursuant to a
    Participant’s elections, and if the Company does invest
    funds, a Participant shall have no right to any invested assets
    other than as a general unsecured creditor of the Company.
    During any period in which a Participant has not made an
    election relating to the investment of some portion of his
    Account, such as in the case of an investment fund previously
    selected by the Participant ceasing to be available under the
    Plan, the Retirement Plan Investment Committee shall determine
    the investment fund or funds to be used in determining
    investment return for that portion of his Account.



 



    4. A new Section 7.6 is added to the Plan to
    provide as follows:



 



    7.6 Provisions Effective Upon a Change in
    Control.  Notwithstanding the provisions of
    Section 7.1 and 7.2, upon a Change in Control the
    Administrative Committee, whether or not earlier appointed,
    shall consist of those three Participants from time to time
    having the largest Accounts under the Plan following the date on
    which the Change in Control occurs who consent to serve on the
    Administrative Committee. The Administrative Committee as so
    constituted shall replace any Administrative Committee earlier
    appointed or established pursuant to Section 7.2. The
    Administrative Committee shall assume the role and duties of the
    Plan Administrator as otherwise set forth in this
    Article 7. Any individual serving on the Administrative
    Committee shall not vote or act on any matter relating solely to
    himself. In the event that there are not three Participants
    available to serve in such capacity, the remaining Participants
    may appoint an independent third party administrator to serve in
    such capacity.



 



    5. A new Section 7.7 is added to the Plan to
    provide as follows:



 



    7.7 Legal Fees and Expenses Following Change in
    Control.  Following a Change in Control, in
    the event that the Administrative Committee should determine
    that the














 














     Company has failed to comply with any of its
    obligations under the Plan or in the event that the Company or any other
    person takes or threatens to take any action to declare the Plan
    void or unenforceable, or institutes any litigation or other
    action or proceeding designed to deny, or to recover from, any
    Participant the benefits provided or intended to be provided to
    the Participant under the Plan, the Company irrevocably
    authorizes the Administrative Committee or affected Participant,
    as the case may be, (the “ Claimant”) from time to
    time to retain counsel of Claimant’s choice, at the expense
    of the Company as hereafter provided, to advise and represent
    the Claimant 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. Without respect to whether the Claimant 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 Claimant in connection with any of the
    foregoing. Such payments shall be made no later than December 31
    of the year following the year in the which the Claimant incurs
    the expenses, provided that in no event will the amount of
    expenses eligible for reimbursement in one year affect the
    amount of expenses to be reimbursed, or in-kind benefits to be
    provided, in any other taxable year.



 



    6. Section 8.5 of the Plan is amended and restated
    as follows:



 



    8.5 Amendment or
    Termination.  Subject to the provisions of
    Section 8.4 and 8.12, the Company reserves the right to
    amend, modify, suspend or terminate the Plan at any time by
    action of its Board or of the Compensation Committee of its
    Board; provided that no prior notice to any Participant shall be
    required, and provided further, that no such action may deprive
    a Participant of his rights to receive a benefit pursuant to the
    Plan with respect to compensation deferred prior to such action.
    However, if a Change in Control occurs, notwithstanding the
    foregoing, during the period of three years that follows such
    Change in Control, no amendment, modification, suspension or
    termination shall be effective unless, (a) such amendment,
    modification, suspension, or termination is consented to by all
    Participants, or (b) such action is required in order to
    comply with Section 409A of the Code or other applicable
    law.



 



    WITNESS WHEREOF, Brush Engineered Materials Inc. has caused this
    Amendment to be executed by its duly authorized officer this
    28th day of July, 2009.



 



    BRUSH ENGINEERED MATERIALS INC.



 


			
	 	    By: 
	
    /s/  Michael
    C. Hasychak









    Name:     Michael C. Hasychak



			
	 	    Title: 
	
    Vice President, Treasurer and Secretary