exv10w1



Table of Contents







    Exhibit 10.1



 


 




    TRUST AGREEMENT


    Between


    BRUSH ENGINEERED MATERIALS INC.


    And


    FIDELITY MANAGEMENT TRUST COMPANY



 




 



    BRUSH ENGINEERED MATERIALS INC. EXECUTIVE DEFERRED
    COMPENSATION PLAN II




    TRUST




    Dated as of June 25, 2009



 


 




    Confidential
    Information
    



 



Plan 20804












Table of Contents





 




    TABLE OF
    CONTENTS



 











	 	 	 	 	 	 	 	 
	
    Section 1.
	 
	
 
	
    Definitions
	
 
	 
	
    2
	 

	
    Section 2.
    
	 
	
 
	
    Trust
	
 
	 
	6	 

	
    (a)
	 
	
 
	
    Establishment
	
 
	 
	6	 

	
    (b)
	 
	
 
	
    Grantor Trust
	
 
	 
	6	 

	
    (c)
	 
	
 
	
    Trust Assets
	
 
	 
	6	 

	
    (d)
	 
	
 
	
    Non-Assignment
	
 
	 
	6	 

	
    Section 3.
    
	 
	
 
	
    Payments to Sponsor
	
 
	 
	7	 

	
    Section 4.
    
	 
	
 
	
    Disbursements
	
 
	 
	7	 

	
    (a)
	 
	
 
	
    Directions from Administrator
	
 
	 
	7	 

	
    (b)
	 
	
 
	
    Limitations
	
 
	 
	7	 

	
    Section 5.
    
	 
	
 
	
    Investment of Trust
	
 
	 
	7	 

	
    (a)
	 
	
 
	
    Selection of Investment Options
	
 
	 
	7	 

	
    (b)
	 
	
 
	
    Available Investment Options
	
 
	 
	7	 

	
    (c)
	 
	
 
	
    Investment Directions
	
 
	 
	8	 

	
    (d)
	 
	
 
	
    Unfunded Status of Plan
	
 
	 
	8	 

	
    (e)
	 
	
 
	
    Mutual Funds
	
 
	 
	8	 

	
 
	 
	
 
	
    (i) Execution of Purchases and Sales
	
 
	 
	8	 

	
 
	 
	
 
	
    (ii) Voting
	
 
	 
	8	 

	
    (f)
	 
	
 
	
    Trustee Powers
	
 
	 
	9	 

	
    Section 6.
    
	 
	
 
	
    Recordkeeping and Administrative Services to Be Performed
	
 
	 
	10	 

	
    (a)
	 
	
 
	
    General
	
 
	 
	10	 

	
    (b)
	 
	
 
	
    Accounts
	
 
	 
	10	 

	
    (c)
	 
	
 
	
    Inspection and Audit
	
 
	 
	11	 

	
    (d)
	 
	
 
	
    Notice of Plan Amendment
	
 
	 
	11	 

	
    (e)
	 
	
 
	
    Returns, Reports and Information
	
 
	 
	12	 

	
    Section 7.
    
	 
	
 
	
    Compensation and Expenses
	
 
	 
	12	 

	
    Section 8.
    
	 
	
 
	
    Directions and Indemnification
	
 
	 
	12	 

	
    (a)
	 
	
 
	
    Identity of the Sponsor and the Administrator
	
 
	 
	12	 

	
    (b)
	 
	
 
	
    Directions from the Sponsor and the Administrator
	
 
	 
	13	 

	
    (c)
	 
	
 
	
    Directions from Participants
	
 
	 
	13	 

	
    (d)
	 
	
 
	
    Indemnification
	
 
	 
	13	 

	
    (e)
	 
	
 
	
    Survival
	
 
	 
	13	 

	
    Section 9.
    
	 
	
 
	
    Resignation or Removal of Trustee
	
 
	 
	13	 

	
    (a)
	 
	
 
	
    Resignation and Removal
	
 
	 
	13	 

	
    (b)
	 
	
 
	
    Termination
	
 
	 
	13	 

	
    (c)
	 
	
 
	
    Notice Period
	
 
	 
	13	 

	
    (d)
	 
	
 
	
    Transition Assistance
	
 
	 
	13	 

	
    (e)
	 
	
 
	
    Failure to Appoint Successor
	
 
	 
	13	 

	
    Section 10.
    
	 
	
 
	
    Successor Trustee
	
 
	 
	13	 

	
    (a)
	 
	
 
	
    Appointment
	
 
	 
	13	 

	
    (b)
	 
	
 
	
    Acceptance
	
 
	 
	13	 

	
    (c)
	 
	
 
	
    Corporate Action
	
 
	 
	13	 

	
    Section 11.
    
	 
	
 
	
    Resignation, Removal, and Termination Notices
	
 
	 
	14	 

	
    Section 12.
    
	 
	
 
	
    Duration
	
 
	 
	14	 

	
    Section 13.
    
	 
	
 
	
    Insolvency of Sponsor
	
 
	 
	15	 

	
    Section 14.
    
	 
	
 
	
    Amendment or Modification
	
 
	 
	15	 

	
    Section 15.
    
	 
	
 
	
    Electronic Services
	
 
	 
	16	 

	
    Section 16.
    
	 
	
 
	
    Assignment
	
 
	 
	16	 

	
    Section 17.
    
	 
	
 
	
    Force Majeure
	
 
	 
	16	 

	
    Section 18.
    
	 
	
 
	
    Confidentiality; Safeguarding of Data
	
 
	 
	18	 

	
    Section 19.
    
	 
	
 
	
    General
	
 
	 
	18	 

	
    (a)
	 
	
 
	
    Performance by Trustee, its Agents or Affiliates
	
 
	 
	18	 

	
    (b)
	 
	
 
	
    Entire Agreement
	
 
	 
	18	 

	
    (c)
	 
	
 
	
    Waiver
	
 
	 
	18	 



 


 




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    (d)
	 
	
 
	
    Successors and Assigns
	
 
	 
	18	 

	
    (e)
	 
	
 
	
    Partial Invalidity
	
 
	 
	19	 

	
    (f)
	 
	
 
	
    Section Headings
	
 
	 
	19	 

	
    (g)
	 
	
 
	
    Communications
	
 
	 
	19	 

	
    (h)
	 
	
 
	
    Survival
	
 
	 
	19	 

	
    Section 20.
    
	 
	
 
	
    Authorization To Make Available Fidelity Personal Guidance
    Offerings
	
 
	 
	19	 

	
    Section 21.
    
	 
	
 
	
    Situs of Trust Assets
	
 
	 
	20	 

	
    Section 22.
    
	 
	
 
	
    Governing Law
	
 
	 
	20	 

	
    (a)
	 
	
 
	
    Massachusetts Law Controls
	
 
	 
	20	 

	
    (b)
	 
	
 
	
    Trust Agreement Controls
	
 
	 
	20	 

	 
	
    SCHEDULES
	
 
	 
	
 
	 

	 
	
    Schedule “A”
	 
	
 
	
    Recordkeeping and Administrative Services
	
 
	 
	
 
	 

	 
	
    Schedule “B”
	 
	
 
	
    Fee Schedule
	
 
	 
	
 
	 

	 
	
    Schedule “C”
	 
	
 
	
    Investment Options
	
 
	 
	
 
	 

	 
	
    Schedule “D”
	 
	
 
	
    Operational Guidelines for Non-Fidelity Mutual Funds
	
 
	 
	
 
	 













 


 




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    TRUST AGREEMENT, dated as of the twenty-fifth day of
    June, 2009 (“Effective Date”), between Brush
    Engineered Materials Inc., an Ohio corporation, having an office
    at 6070 Parkland Boulevard, Mayfield Heights, OH 44124 (the
    “Sponsor”), and FIDELITY MANAGEMENT
    TRUST COMPANY, a Massachusetts trust company, having an
    office at 82 Devonshire Street, Boston, Massachusetts 02109 (the
    “Trustee”).



 




    WITNESSETH:



 



    WHEREAS, the Sponsor is the sponsor of the Brush
    Engineered Materials Inc. Executive Deferred Compensation
    Plan II (the “Plan”); and



 



    WHEREAS, each Employer has adopted the Plan and has
    incurred or expects to incur liability under the Plan with
    respect to its employees participating in the Plan; and



 



    WHEREAS, the Sponsor wishes to establish an irrevocable
    trust (the “Trust”) with regard to the Plan and to
    have each Employer contribute to the Trust assets that shall be
    held therein subject to the claims of each Employer’s
    creditors in the event of such Employer’s Insolvency, as
    herein defined, until paid to such Employer’s Participants
    and their beneficiaries in such manner and at such times as
    specified in the Plan; and



 



    WHEREAS, it is the intention of the parties that this
    Trust shall constitute an unfunded arrangement and shall not
    affect the status of the Plan as an unfunded plan maintained for
    the purpose of providing deferred compensation for a select
    group of management or highly compensated employees for purposes
    of Title I of the Employee Retirement Income Security Act
    of 1974 (“ERISA”); and



 



    WHEREAS, it is the intention of each Employer to make
    contributions to the Trust to provide itself with a source of
    funds to assist it in the meeting of its liabilities under the
    Plan; and



 



    WHEREAS, the Trustee is willing to hold and invest the
    aforesaid plan assets in trust among several investment options
    selected by the Sponsor; and



 



    WHEREAS, the Sponsor also wishes to have the Trustee
    perform certain ministerial recordkeeping and administrative
    functions under the Plan; and



 



    WHEREAS, the Trustee is willing to perform recordkeeping
    and administrative services for the Plan if the services are
    ministerial in nature and are provided within a framework of
    plan provisions, guidelines and interpretations conveyed in
    writing to the Trustee by the Administrator (as defined herein).



 



    NOW, THEREFORE, in consideration of the foregoing
    premises and the mutual covenants and agreements set forth
    below, the Sponsor and the Trustee agree as follows:



 



    Section 1.  Definitions.



 



    The following terms as used in this Trust Agreement have
    the meaning indicated unless the context clearly requires
    otherwise:



 



    (a) “Administrator”  



 



    “Administrator” shall mean the Plan
    Administrator identified in the Plan document.



 




    

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    (b) “Agreement”



 



    “Agreement” shall mean this
    Trust Agreement, and the Schedules
    and/or
    Exhibits attached hereto, as the same may be amended and in
    effect from time to time.



 



    (c) “Business Day”



 



    “Business Day” shall mean each day the NYSE is
    open. The closing of a Business Day shall mean the NYSE’s
    normal closing time of 4:00 p.m.(ET), however, in the event
    the NYSE closes before such time or alters its closing time, all
    references to the NYSE closing time shall mean the actual or
    altered closing time of the NYSE.


 


 




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    (d) “Code”



 



    “Code” shall mean the Internal Revenue Code of
    1986, as it has been or may be amended from time to time.



 



    (e) “EDT”



 



    “EDT” shall mean electronic data transfer.



 



    (f) “Electronic Services”



 



    “Electronic Services” shall mean communication
    and services made available via electronic media.



 



    (g) “Employer”



 



    “Employer” shall mean the Sponsor and any other
    corporation in a controlled group of corporations (under Code
    Section 414(b)) of which the Sponsor is a member which
    adopts the Plan for the benefit of its employees as provided in
    the Plan.



 



    (h) “ERISA”



 



    “ERISA” shall mean the Employee Retirement
    Income Security Act of 1974, as it has been or may be amended
    from time to time.



 



    (i) “External Account Information”



 



    “External Account Information” shall mean
    account information, including retirement savings account
    information, from third party websites or other websites
    maintained by Fidelity or its affiliates.



 



    (j) “Fidelity Mutual Fund”



 



    “Fidelity Mutual Fund” shall mean any
    investment company advised by Fidelity Management &
    Research Company or any of its affiliates.



 



    (k) “FIIOC”



 



    “FIIOC” shall mean Fidelity Investments
    Institutional Operations Company, Inc.



 



    (l) “In Good Order”



 



    “In Good Order” shall mean in a state or condition
    acceptable to the Trustee in its sole discretion, which the
    Trustee determines is reasonably necessary for accurate
    execution of the intended transaction.


 


 




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    (m) “Insolvency”



 



    “Insolvency” shall mean with respect to an
    Employer that (i) such Employer is unable to pay its debts
    as they become due, or (ii) such Employer is subject to a
    pending proceeding as a debtor under the United States
    Bankruptcy Code.



 



    (n) “Insolvent”



 



    “Insolvent” shall mean with respect to an
    Employer that (i) such Employer is unable to pay its debts
    as they become due, or (ii) such Employer is subject to a
    pending proceeding as a debtor under the United States
    Bankruptcy Code.



 



    (o) “Losses”



 



    “Losses” shall mean any and all loss, damage,
    penalty, liability, cost and expense, including without
    limitation, reasonable attorney’s fees and disbursements.



 



    (p) “Mutual Fund”



 



    “Mutual Fund” shall refer both to Fidelity
    Mutual Funds and Non-Fidelity Mutual Funds.





    (q) “NAV”



 



    “NAV” shall mean Net Asset Value.



 



    (r) “NFSLLC”



 



    “NFSLLC” shall mean National Financial Services
    LLC.



 



    (s) “Non-Fidelity Mutual Fund”



 



    “Non-Fidelity Mutual Fund” shall mean certain
    investment companies not advised by Fidelity
    Management & Research Company or any of its affiliates.



 



    (t) “NYSE”



 



    “NYSE” shall mean the New York Stock Exchange.



 



    (u) “Participant”



 



    “Participant” shall mean, with respect to the
    Plan, any employee (or former employee) with an account under
    the Plan, which has not yet been fully distributed
    and/or
    forfeited, and shall include the designated beneficiary(ies)
    with respect to the account of any deceased employee (or
    deceased former employee) until such account has been fully
    distributed
    and/or
    forfeited.



 



    (v) “Participant Recordkeeping Reconciliation
    Period”



 



    “Participant Recordkeeping Reconciliation Period”
    shall mean the period beginning on the date of the initial
    transfer of assets to the Trust and ending on the date of the
    completion of the reconciliation of Participant records.



 


 


 




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    (w) “Person”



 



    “Person” shall mean any corporation, joint
    stock company, limited liability company, association,
    partnership, joint venture, organization, individual, business
    or other trust or any other entity or organization of any kind
    or character, including a court or other governmental authority.



 



    (x) “PIN”



 



    “PIN” shall mean personal identification number.



 



    (y) “Plan”



 



    “Plan” shall mean the Brush Engineered
    Materials Inc. Executive Deferred Compensation Plan II.



 



    (z) “Plan Administration Design &
    Discovery Document”



 



    “Plan Administration Design & Discovery
    Document” shall mean the document which sets forth the
    administrative and recordkeeping duties and procedures to be
    followed by the Trustee in administering the Plan, as such
    document may be amended and in effect from time to time during
    the initial implementation of the Plan onto the Fidelity
    Participant Recordkeeping System (“FPRS”). This
    document is an interim document and shall be superseded by the
    approved Plan Administration Manual.



 



    (aa) “Plan Administration Manual”



 



    “Plan Administration Manual” shall mean the
    document which sets forth the administrative and recordkeeping
    duties and procedures to be followed by the Trustee in
    administering the Plan, as such document may be amended and in
    effect from time to time. This definition shall include the Plan
    Administration Design & Discovery Document from the
    implementation process until the full Plan Administration Manual
    can be generated and approved.



 



    (bb) “Plan Sponsor Webstation”



 



    “Plan Sponsor Webstation” shall mean the
    graphical windows based application that provides current Plan
    and Participant information including indicative data, account
    balances, activity and history.


 


    (cc) “Reporting Date”



 



    “Reporting Date” shall mean the last day of
    each fiscal quarter of the Plan and, if not on the last day of
    fiscal quarter, the date as of which the Trustee resigns or is
    removed pursuant to this Agreement or the date as of which this
    Agreement terminates pursuant to Section 9 hereof.



 



    (dd) “SEC”



 



    “SEC” shall mean the Securities and Exchange
    Commission.



 



    (ee) “Sponsor”



 



    “Sponsor” shall mean Brush Engineered Materials
    Inc., an Ohio corporation, or any successor to all or
    substantially all of its businesses which, by agreement,
    operation of law or otherwise, assumes the responsibility of the
    Sponsor under this Agreement.



 



    (ff) “Trust”



 



    “Trust” shall mean the Brush Engineered
    Materials Inc. Executive Deferred Compensation Plan II
    Trust, being the trust established by the Sponsor and the
    Trustee pursuant to the provisions of this Agreement.





 


 




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    (gg) “Trustee”



 



    “Trustee” shall mean Fidelity Management
    Trust Company, a Massachusetts trust company and any
    successor to all or substantially all of its trust business as
    described in Section 10. The term Trustee shall also
    include any successor trustee appointed pursuant to
    Section 10 to the extent such successor agrees to serve as
    Trustee under this Agreement.



 



    (hh) “VRS”



 



    “VRS” shall mean Voice Response System.



 



    Section 2.  Trust.



 



    (a) Establishment.



 



    The Sponsor hereby establishes the Trust with the Trustee. The
    Trust shall consist of an initial contribution of money or other
    property acceptable to the Trustee in its sole discretion, made
    by an Employer or transferred from a previous trustee under the
    Plan, such additional sums of money as shall from time to time
    be delivered to the Trustee under the Plan, all investments made
    therewith and proceeds thereof, and all earnings and profits
    thereon, less the payments that are made by the Trustee as
    provided herein, without distinction between principal and
    income. The Trustee hereby accepts the Trust on the terms and
    conditions set forth in this Agreement. In accepting this Trust,
    the Trustee shall be accountable for the assets received by it,
    subject to the terms and conditions of this Agreement.



 



    (b) Grantor Trust.



 



    The Trust is intended to be a grantor trust, of which the
    Sponsor is the grantor, within the meaning of subpart E,
    part I, subchapter J, chapter 1, subtitle A of the
    Code, as amended, and shall be construed accordingly.



 



    (c) Trust Assets.



 



    The principal of the Trust contributed by each Employer, and any
    earnings thereon, shall be held in a
    sub-trust
    separate and apart from other funds of the Employer and shall be
    used exclusively for the uses and purposes of Participants with
    respect to such Employer and general creditors of such Employer
    as herein set forth. Participants and their beneficiaries shall
    have no preferred claim on, or any beneficial ownership interest
    in, any assets of the Trust. Any rights created under the Plan
    and this Agreement shall be mere unsecured contractual rights of
    Participants and their beneficiaries against an Employer. Any
    assets held by the Trust in a
    sub-trust
    with respect to an Employer will be subject to the claims of
    such Employer’s general creditors under federal and state
    law in the event of Insolvency of such Employer.


 


    (d) Non-Assignment.


 




    Benefit payments to Participants and their beneficiaries funded
    under this Trust may not be anticipated, assigned (either at law
    or in equity), alienated, pledged, encumbered, or subjected to
    attachment, garnishment, levy, execution, or other legal or
    equitable process. Notwithstanding anything in this Agreement to
    the contrary, the Sponsor can direct the Trustee to disperse
    monies pursuant to a domestic relations order as defined in Code
    section 414(p)(1)(B) in accordance with Section 4(a).



 


 




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    Section 3.  Payments
    to Sponsor.



 



    Except as provided under this Agreement, the Sponsor shall have
    no right to retain or divert to others any of the Trust assets
    before all payment of benefits have been made to Participants
    pursuant to the terms of the Plan. Notwithstanding the
    foregoing, in the event that the Administrator determines that
    the amount of assets held in the Trust with reference to a
    particular Participant exceeds the obligation of the
    Participant’s Employer to such Participant under the Plan,
    the Trustee shall disburse such excess amount to the
    Administrator as directed by the Administrator. The Trustee
    shall have no responsibility for determining the accuracy of the
    Administrator’s calculations of such excess amounts.



 



    Section 4.  Disbursements.



 



    (a) Directions from Administrator.



 



    The Trustee shall disburse monies to the Administrator for
    benefit payments in the amounts that the Administrator directs
    from time to time in writing. The Trustee shall have no
    responsibility to ascertain whether the Administrator’s
    direction complies with the terms of the Plan or any applicable
    law. The Trustee shall not be responsible for: (i) making
    benefit payments to Participants under the Plan, (ii) any
    Federal, State or local income tax reporting or withholding with
    respect to such Plan benefits, and (iii) FICA (Social
    Security and Medicare) or any Federal or State unemployment tax
    with respect to Plan distributions.



 



    (b) Limitations.



 



    The Trustee shall not be required to make any disbursement in
    excess of the net realizable value of the assets of the Trust at
    the time of the disbursement. The Trustee shall make all
    disbursements in cash to the Administrator.



 



    Section 5.  Investment
    of Trust.



 



    (a) Selection of Investment Options.



 



    The Trustee shall have no responsibility for the selection of
    investment options under the Trust and shall not render
    investment advice to any person in connection with the selection
    of such options.



 



    (b) Available Investment Options.



 



    The Sponsor shall direct the Trustee as to what investment
    options the Trust shall be invested in (i) during the
    Participant Recordkeeping Reconciliation Period, and
    (ii) following the Participant Recordkeeping Reconciliation
    Period, subject to the following limitations. The Sponsor may
    determine to offer as investment options only Mutual Funds;
    provided, however, that the Trustee shall not be considered a
    fiduciary with investment discretion. The Sponsor may add or
    remove investment options with the consent of the Trustee, which
    consent will not be unreasonably withheld to reflect
    administrative concerns and upon mutual amendment of this
    Agreement and the Schedules thereto, to reflect such additions.



 




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    (c) Investment Directions.



 



    The Sponsor shall direct the Trustee as to how to invest the
    assets held in the Trust. In order to provide for an
    accumulation of assets comparable to the contractual liabilities
    accruing under the Plan, the Sponsor may direct the Trustee in
    writing to invest the assets held in the Trust to correspond to
    the hypothetical investments made for Participants in accordance
    with their direction under the Plan. In such cases, Participants
    may provide directions with respect to their hypothetical
    investments under the Plan by use of the system maintained for
    such purposes by the Trustee or its agents, as may be agreed
    upon from time to time by the Sponsor and the Trustee, and shall
    be


 



    processed in accordance with the fund exchange provisions set
    forth in the Plan Administration Manual. The Trustee shall not
    be liable for any loss or expense that arises from a
    Participant’s exercise or non-exercise of rights under this
    Section 5 over the assets in the Participant’s
    accounts. In the event that the Trustee fails to receive a
    proper direction, the assets in question shall be invested in
    the investment option set forth for such purpose on Schedule
    “C” until the Trustee receives a proper direction.



 



    (d) Unfunded Status of Plan



 



    The Sponsor’s designation of available investment options,
    the maintenance of accounts for each Participant, the crediting
    of investments gains (or losses) to such accounts, and the
    exercise by Participants of any powers relating to investments
    under this Agreement are solely for the purpose of providing a
    mechanism for measuring the obligation of an Employer to any
    particular Participant under the applicable Plan. As provided in
    this Agreement, no Participant will have any preferential claim
    to or beneficial ownership interest in any asset or investment
    held in the Trust, and the rights of any Participant under the
    applicable Plan and this Agreement are solely those of an
    unsecured general creditor of the Employer with respect to the
    benefits of the Participant under the Plan.



 



    (e) Mutual Funds.



 



    On the effective date of this Agreement, in lieu of receiving a
    printed copy of the prospectus for each Fidelity Mutual Fund
    selected by the Sponsor as a Plan investment option or
    short-term investment fund, the Sponsor hereby consents to
    receiving such documents electronically. The Sponsor shall
    access each prospectus on the internet after receiving notice
    from the Trustee that a current version is available online at a
    website maintained by the Trustee or its affiliate. Trustee
    represents that on the effective date of this Agreement, a
    current version of each such prospectus is available at
    https://www.fidelity.com or such successor website as
    Trustee may notify the Sponsor of in writing from time to time.
    The Sponsor represents that it has accessed/will access each
    such prospectus as of the effective date of this Agreement at
    https://www.fidelity.com or such successor website as
    Trustee may notify the Sponsor of in writing from time to time.
    Transactions involving Non-Fidelity Mutual Funds shall be
    executed in accordance with the operational guidelines set forth
    in Schedule “D” attached hereto. Trust investments in
    Mutual Funds shall be subject to the following limitations:



 



    (i) Execution of Purchases and Sales.



 



    Purchases and sales of Mutual Funds (other than for exchanges)
    shall be made on the date on which the Trustee receives from the
    Sponsor In Good Order all information and documentation
    necessary to accurately effect such transactions and (if
    applicable) wire transfer of funds. Exchanges of Mutual Funds
    shall be processed in accordance with the fund exchange
    provisions set forth in the Plan Administration Manual.



 




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    (ii) Voting.



 



    The Sponsor directs the Trustee to vote the shares of Mutual
    Funds held in the Trust in the same manner as directed by
    Participants for the corresponding hypothetical shares of Mutual
    Funds credited to Participants’ accounts under the Plan. At
    the time of mailing of notice of each annual or special
    stockholders’ meeting of any Mutual Fund, the Trustee shall
    send a copy of the notice and all proxy solicitation materials
    to each Participant who has hypothetical shares of such Mutual
    Fund credited to the Participant’s account, together with a
    voting direction form for return to the Trustee or its designee.
    The Participant shall have the right to direct the Trustee as to
    the manner in which the Trustee is to vote the hypothetical
    shares credited to the Participant’s account. The Trustee
    shall vote the shares held in the Trust in a manner which
    corresponds to Participant directions with respect to the
    hypothetical shares credited to the Participant’s Plan
    account. The Trustee shall not vote shares for which it has
    received no corresponding directions from the Participant.



 



    During the Participant Recordkeeping Reconciliation Period, the
    Sponsor shall have the right to direct the Trustee as to the
    manner in which the Trustee is to vote the shares of the Mutual
    Funds in the Trust, including Mutual Fund shares held in any
    short-term investment fund for liquidity reserve. Following the
    Participant Recordkeeping Reconciliation Period, the Sponsor
    shall continue to have the right to direct the Trustee as to the
    manner in which the Trustee is to vote any Mutual Funds shares
    held in a short-term investment fund for liquidity reserve. The
    Trustee shall not vote any such Mutual Fund shares for which it
    has received no directions from the Sponsor.


 



    With respect to all rights other than the right to vote, the
    Trustee shall follow the directions of the Sponsor. The Trustee
    shall have no further duty to solicit directions from the
    Sponsor or Participants.



 



    (f) Trustee Powers.



 



    The Trustee shall have the following powers and authority:



 



    (i) Subject to this Section 5, to sell, exchange,
    convey, transfer, or otherwise dispose of any property held in
    the Trust, by private contract or at public auction. No person
    dealing with the Trustee shall be bound to see to the
    application of the purchase money or other property delivered to
    the Trustee or to inquire into the validity, expediency, or
    propriety of any such sale or other disposition.



 



    (ii) To cause any securities or other property held as part
    of the Trust to be registered in the Trustee’s own name, in
    the name of one or more of its nominees, or in the
    Trustee’s account with the Depository Trust Company of
    New York and to hold any investments in bearer form, but the
    books and records of the Trustee shall at all times show that
    all such investments are part of the Trust.



 



    (iii) To keep that portion of the Trust in cash or cash
    balances as the Sponsor or Administrator may, from time to time,
    deem to be in the best interest of the Trust.



 



    (iv) To make, execute, acknowledge, and deliver any and all
    documents of transfer or conveyance and to carry out the powers
    herein granted.



 



    (v) To borrow funds from a bank or other financial
    institution not affiliated with the Trustee in order to provide
    sufficient liquidity to process Plan transactions in a timely
    fashion, provided that the cost of borrowing shall be allocated
    in a reasonable fashion to the investment fund(s) in need of
    liquidity. The Sponsor acknowledges that it has received the
    disclosure on the Trustee’s line of credit program and
    credit allocation policy and a copy of the text of Prohibited
    Transaction
    Exemption 2002-55
    prior to executing this Agreement if applicable.



 




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    (vi) To settle, compromise, or submit to arbitration any
    claims, debts, or damages due to or arising from the Trust; to
    commence or defend suits or legal or administrative proceedings;
    to represent the Trust in all suits and legal and administrative
    hearings; and to pay all reasonable expenses arising from any
    such action, from the Trust if not paid by the Sponsor.



 



    (vii) With the consent of the Sponsor which shall not be
    unreasonably withheld, the Trustee can employ legal, accounting,
    clerical, and other assistance as may be required in carrying
    out the provisions of this Agreement and to pay their reasonable
    expenses and compensation from the Trust if not paid by the
    Sponsor.



 



    (viii) To do all other acts, although not specifically
    mentioned herein, as the Trustee may deem necessary to carry out
    any of the foregoing powers and the purposes of the Trust.



 



    Notwithstanding any powers granted to Trustee pursuant to this
    Agreement or to applicable law, Trustee shall not have any power
    that could give this Trust the objective of carrying on a
    business and dividing the gains therefrom, within the meaning of
    Section 301.7701-2
    of the Procedure and Administrative Regulations promulgated
    pursuant to the Code. The Trustee will file an annual fiduciary
    return to the extent required by law.



 



    Section 6.  Recordkeeping
    and Administrative Services to Be Performed.



 



    (a) General.



 



    The Trustee shall perform those recordkeeping and administrative
    functions described in Schedule “A” attached hereto.
    These recordkeeping and administrative functions shall be
    performed within the framework of the Administrator’s
    written directions regarding the Plan’s provisions,
    guidelines and interpretations. The Sponsor acknowledges that
    the Trustee does not provide legal or tax advice, and that the
    Sponsor must obtain its own legal and tax counsel for advice on
    the plan design appropriate for its specific situation and on
    legal and tax issues pertaining to the administration of the
    Plan. The Sponsor further acknowledges that the Trustee has no
    continuing responsibility to be aware of and responsive to IRS
    guidance provided under Section 409A of the Code as the
    Trustee is not the responsible party for (a) ensuring that
    the Administrator’s or Sponsor’s direction to the
    Trustee


 



    conforms with that guidance, and (b) the payment of all
    taxes and penalties associated with a failure to maintain such
    compliance.



 



    (b) Accounts.



 



    The Trustee shall keep accurate accounts of all investments,
    receipts, disbursements, and other transactions hereunder, and
    shall report the value of the assets held in the Trust as of the
    last day of each Reporting Date. Within thirty (30) days
    following each Reporting Date or within sixty (60) days in
    the case of a Reporting Date caused by the resignation or
    removal of the Trustee, or the termination of this Agreement,
    the Trustee shall file with the Administrator a written account
    setting forth all investments, receipts, disbursements, and
    other transactions effected by the Trustee between the Reporting
    Date and the prior Reporting Date, and setting forth the value
    of the Trust as of the Reporting Date. The Administrator shall
    use all reasonable efforts to bring to the Trustee’s
    attention, as soon as possible, any concerns or objections it
    may have relating to the accounts. Notwithstanding the previous
    sentence, and except as otherwise required under applicable law,
    upon the expiration of twelve (12) months from the date of
    filing such account, the Trustee shall have no liability or
    further accountability to anyone with respect to the propriety
    of its acts or transactions shown in such account, except with
    respect to such acts or transactions as to which a written
    objection shall have been filed with the Trustee within such
    twelve (12) month period.



 




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    (c) Inspection and Audit.



 



    Upon the resignation or removal of the Trustee or the
    termination of this Agreement, the Trustee shall provide to the
    Sponsor, at no expense to the Sponsor, in the format regularly
    provided to the Sponsor, a statement of each Participant’s
    account as of the resignation, removal, or termination, and the
    Trustee shall provide to the Sponsor or the Plan’s new
    recordkeeper such further records as are reasonable, at the
    Sponsor’s expense.



 



    The Trustee will provide to auditors (including third-party
    auditors and Sponsor’s internal audit staff) as Sponsor may
    designate in writing, access to any Trustee owned or managed
    facility at which the services are being performed, to
    appropriate Trustee management personnel, and to the data and
    records (and other documentation reasonably requested by the
    Sponsor) maintained by the Trustee with respect to the services
    solely for the purpose of examining (i) transactional books
    and records maintained by the Trustee in order to provide the
    services, (ii) documentation of service level performance,
    and (iii) invoices to the Sponsor. Any such audits will be
    conducted at the Sponsor’s expense. The Sponsor and its
    auditors will first look to the most recent Type II Service
    Auditor’s Report (“Type II SAR”) before
    conducting further audits. Type II SAR’s are reports
    issued by the Trustee’s or its affiliate’s independent
    public accounting firm in accordance with Statement on Auditing
    Standard No. 70 (“SAS 70”). If a matter is not
    covered in such Type II SAR, then the Sponsor will provide
    the Trustee with a proposed detailed scope and timeframe of the
    audit requested by the Sponsor in writing at least sixty
    (60) days prior to date of the audit. The Sponsor will
    provide the Trustee with not less than ninety (90) days
    prior written notice of an audit, excepting audit requests from
    governmental or regulatory agencies. The Sponsor and its
    auditors will conduct such audits in a manner that will result
    in a minimum of inconvenience and disruption to the
    Trustee’s operations. Audits may be conducted only during
    normal business hours and no more frequently than annually
    unless otherwise required as a matter of law or for compliance
    with regulatory or contractual requirements. Any audit
    assistance provided by the Trustee in excess of the number of
    audit hours per annum referenced in the fee schedule shall be
    provided on a
    fee-for-service
    basis. The Sponsor and its auditors will not be entitled to
    review or audit (i) data or information of other customers
    or clients of the Trustee, (ii) any of Trustee’s
    proprietary data, or (iii) any other Confidential
    Information of the Trustee that is not relevant for the purposes
    of the audit. The Sponsor and its auditors will not be entitled
    to logical access to the Trustee’s networks and systems,
    nor unrestricted physical access to Trustee’s facilities
    and personnel. Reviews of processes, controls, and support
    documentation will be facilitated with appropriate
    Trustee’s personnel. The Trustee will use commercially
    reasonable efforts to cooperate in the audit, will make
    available on a timely basis the information reasonably required
    to conduct the audit and will assist the designated employees of
    the Sponsor or its auditors as reasonably necessary. The Sponsor
    will reimburse the Trustee for any costs incurred by the Trustee
    in connection with an audit conducted pursuant to this section.
    To the maximum extent possible, audits will be designed and
    conducted (in such manner and with such frequency) so as not to
    interfere with the provision of the services. The Sponsor will
    not use any competitors of the Trustee (or any significant
    subcontractor of Trustee under this Agreement) to conduct such
    audits. The auditors and other


 



    representatives of the Sponsor will execute and deliver such
    confidentiality and non-disclosure agreements and comply with
    such security and confidentiality requirements as the Trustee
    may reasonably request in connection with such audits.



 



    (d) Notice of Plan Amendment.



 



    The Trustee’s provision of the recordkeeping and
    administrative services set forth in this Section shall be
    conditioned on the Sponsor delivering to the Trustee a copy of
    any amendment to the Plan impacting the services to be provided
    under this Agreement as soon as administratively feasible
    following the amendment’s adoption, and on the
    Administrator providing the Trustee, on a timely basis, with all
    the information the Trustee deems necessary for the Trustee to
    perform the recordkeeping and administrative services and such
    other information as the Trustee may reasonably request.



 




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    (e) Returns, Reports and Information.



 



    Except as set forth in the Plan Reporting section of Schedule
    “A”, the Administrator shall be responsible for the
    preparation and filing of all returns, reports, and information
    required of the Trust or Plan by law. The Trustee shall provide
    the Administrator with such information as the Administrator may
    reasonably request to make these filings. The Administrator
    shall also be responsible for making any disclosures to
    Participants required by law.



 



    Section 7.  Compensation
    and Expenses.



 



    Sponsor shall pay to Trustee, within thirty (30) days of
    receipt of the Trustee’s bill, the fees for services in
    accordance with Schedule “B.” Fees for services are
    specifically outlined in Schedule “B” and are based on
    any assumptions identified therein. In the event that the Plan
    characteristics referenced in the assumptions outlined in
    Schedule “B” change significantly by either falling
    below or exceeding current or projected levels, such fees may be
    subject to revision, upon mutual renegotiation. To reflect
    increased operating costs, Trustee may once each calendar year
    amend Schedule “B” without the Sponsor’s consent
    upon one hundred and twenty (120) days prior notice to the
    Sponsor.



 



    All reasonable expenses of Plan administration as shown on
    Schedule “B” attached hereto, as amended from time to
    time, shall be a charge against and paid from the appropriate
    Participant-related accounts, except to the extent such amounts
    are paid by the Sponsor in a timely manner.



 



    All expenses of the Trustee relating directly to the acquisition
    and disposition of investments constituting part of the Trust,
    and all taxes of any kind whatsoever that may be levied or
    assessed under existing or future laws upon or in respect of the
    Trust or the income thereof, shall be a charge against and paid
    from the appropriate Participant-related accounts.



 



    Section 8.  Directions
    and Indemnification.



 



    (a) Identity of the Sponsor and the
    Administrator.



 



    The Trustee shall be fully protected in relying on the fact that
    the Sponsor and the Administrator under the Plan are the
    individual or persons named as such above or such other
    individuals or persons as the Sponsor may notify the Trustee in
    writing.



 



    (b) Directions from the Sponsor and the
    Administrator.



 



    Whenever the Sponsor or the Administrator provides a direction
    to the Trustee, the Trustee shall not be liable for any loss or
    expense arising from the direction if the direction is contained
    in a writing provided by any individual whose name has been
    submitted (and not withdrawn) in writing to the Trustee by the
    Sponsor or the Administrator unless it is clear on the
    direction’s face that the actions to be taken under the
    direction would be contrary to the terms of this Agreement. The
    Trustee may rely without further duty of inquiry on the
    authority of any such individual to provide direction to the
    Trustee on behalf of the Sponsor.


 



    For purposes of this Section, such direction may also be made
    via EDT, facsimile or such other secure electronic means in
    accordance with procedures agreed to by the Sponsor and the
    Trustee and, in any such case the Trustee shall be fully
    protected in relying on such direction as if it were a direction
    made in writing by the Sponsor.






 




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    (c) Directions from Participants.



 



    The Trustee shall not be liable for any loss which arises from
    any Participant’s exercise or non-exercise of rights under
    the Plan over the assets in the Participants’ hypothetical
    accounts.



 



    (d) Indemnification.



 



    The Sponsor shall indemnify the Trustee against, and hold the
    Trustee harmless from, any and all Losses that may be incurred
    by, imposed upon, or asserted against the Trustee by reason of
    any claim, regulatory proceeding, or litigation arising from any
    act done or omitted to be done by any individual or person with
    respect to the Plan or Trust, excepting only any and all Losses
    arising solely from the Trustee’s breach of this Agreement,
    negligence, bad faith or willful misconduct.



 



    The Trustee shall indemnify the Sponsor against, and hold the
    Sponsor harmless from, any and all Losses that may be incurred
    by, imposed upon, or asserted against the Sponsor by reason of
    any claim, regulatory proceeding, or litigation arising from
    Trustee’s breach of this Agreement, negligence, bad faith
    or willful misconduct.



 



    The Trustee shall also indemnify the Sponsor against and hold
    the Sponsor harmless from any and all such Losses that may be
    incurred by, imposed upon, or asserted against the Sponsor
    solely as a result of: i) any defects in the investment
    methodology embodied in the target asset allocation or model
    portfolio provided through Portfolio Review, except to the
    extent that any such Losses arise from information provided by
    the Participant, the Sponsor or third parties; or ii) any
    prohibited transactions resulting from the provision of
    Portfolio Review by the Trustee.



 



    (e) Survival.



 



    The provisions of this Section shall survive the termination of
    this Agreement.



 



    Section 9.  Resignation
    or Removal of Trustee.



 



    (a) Resignation and Removal.



 



    The Trustee may resign at any time in accordance with the notice
    provisions set forth below. The Sponsor may remove the Trustee
    at any time in accordance with the notice provisions set forth
    below.



 



    (b) Termination.



 



    This Agreement may be terminated in full, or with respect to
    only a portion of the Plan (i.e. a “partial
    deconversion”) at any time by the Sponsor upon prior
    written notice to the Trustee in accordance with the notice
    provisions set forth below.



 



    (c) Notice Period.



 



    In the event either party desires to terminate this Agreement or
    any Services hereunder, the party shall provide at least sixty
    (60) days prior written notice of the termination date to
    the other party; provided, however, that the receiving party may
    agree, in writing, to a shorter notice period.





 



    (d) Transition Assistance.



 



    In the event of termination of this Agreement, if requested by
    Sponsor, the Trustee shall assist Sponsor in developing a plan
    for the orderly transition of the Plan data, cash and assets
    then constituting the Trust and services provided by the Trustee
    hereunder to Sponsor or its designee. The Trustee shall provide
    such assistance for a period not extending beyond sixty
    (60) days from the termination date of this Agreement. The
    Trustee shall provide to Sponsor, or to any person designated by
    Sponsor, at a mutually agreeable time, one file of the Plan data
    prepared and maintained by the Trustee in the ordinary course of
    business, in the Trustee’s format. The Trustee may provide
    other or additional transition assistance as mutually determined
    for additional fees, which shall be due and payable by the
    Sponsor prior to any termination of this Agreement.


 




    (e) Failure to Appoint Successor.



 



    If, by the termination date, the Sponsor has not notified the
    Trustee in writing as to the individual or entity to which the
    assets and cash are to be transferred and delivered, the Trustee
    may bring an appropriate action or proceeding for leave to
    deposit the assets and cash in a court of competent
    jurisdiction. The Trustee shall be reimbursed by the Sponsor for
    all costs and expenses of the action or proceeding including,
    without limitation, reasonable attorneys’ fees and
    disbursements.



 



    Section 10.  Successor
    Trustee.



 



    (a) Appointment.



 



    If the office of Trustee becomes vacant for any reason, the
    Sponsor may in writing appoint a successor trustee under this
    Agreement. The successor trustee shall have all of the rights,
    powers, privileges, obligations, duties, liabilities, and
    immunities granted to the Trustee under this Agreement. The
    successor trustee and predecessor trustee shall not be liable
    for the acts or omissions of the other with respect to the Trust.



 



    (b) Acceptance.



 



    As of the date the successor trustee accepts its appointment
    under this Agreement, title to and possession of the Trust
    assets shall immediately vest in the successor trustee without
    any further action on the part of the predecessor trustee,
    except as may be required to evidence such transition. The
    predecessor trustee shall execute all instruments and do all
    acts that may be reasonably necessary and requested in writing
    by the Sponsor or the successor trustee to vest title to all
    Trust assets in the successor trustee or to deliver all Trust
    assets to the successor trustee.



 



    (c) Corporate Action.



 



    Any successor of the Trustee or successor trustee, either
    through sale or transfer of the business or trust department of
    the Trustee or successor trustee, or through reorganization,
    consolidation, or merger, or any similar transaction of either
    the Trustee or successor trustee, shall, upon consummation of
    the transaction, become the successor trustee under this
    Agreement.



 



    Section 11.  Resignation,
    Removal, and Termination Notices.



 



    All notices of resignation, removal, or termination under this
    Agreement must be in writing and mailed to the party to which
    the notice is being given by certified or registered mail,
    return receipt requested, to the Sponsor
    c/o Director —
    Treasury Operations, Brush Engineered Materials Inc., 6070
    Parkland Boulevard, Mayfield Heights, OH 44124, and to the
    Trustee c/o Fidelity

  




 




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    Investments, Contracts Development & Negotiation,
    82 Devonshire Street, MM1M, Boston, Massachusetts 02109, or
    to such other addresses as the parties have notified each other
    of in the foregoing manner.



 



    Section 12.  Duration.



 



    This Trust shall continue in effect without limit as to time,
    subject, however, to the provisions of this Agreement relating
    to amendment, modification, and termination thereof.



 



    Section 13.  Insolvency
    of Sponsor.



 



    (a) Trustee shall cease disbursement of funds for payment
    of benefits to Participants with respect to an Employer if the
    Employer is Insolvent, and shall cease disbursement of funds for
    payment of benefits if the Sponsor is Insolvent.



 



    (b) All times during the continuance of this Trust, the
    principal and income of a
    sub-trust
    with respect to an Employer shall be subject to claims of
    general creditors of such Employer under federal and state law
    as set forth below.



 



    (i) The Board of Directors and the Chief Executive Officer
    of the Sponsor and the highest ranking officer of the Employer
    shall have the duty to inform Trustee in writing of such
    Employer’s Insolvency. If a person claiming to be a
    creditor of the Employer alleges in writing to Trustee that such
    Employer has become Insolvent, Trustee shall
    determine whether the Employer is Insolvent and, pending such
    determination, Trustee shall discontinue disbursements for
    payment of benefits to Participants of such Employer (if the
    Employer is the Sponsor, the Trustee shall discontinue
    disbursements for payment of all benefits to all Participants).



 



    (ii) Unless Trustee has actual knowledge of the
    Employer’s Insolvency, or has received notice from Sponsor
    or such Employer or a person claiming to be a creditor alleging
    that such Employer is Insolvent, Trustee shall have no duty to
    inquire whether an Employer is Insolvent. Trustee may in all
    events rely on such evidence concerning an Employer’s
    solvency as may be furnished to Trustee and that provides
    Trustee with a reasonable basis for making a determination
    concerning such Employer’s solvency.



 



    (iii) If at any time Trustee has determined that an
    Employer is Insolvent, Trustee shall discontinue disbursements
    for payments to such Employer’s Participants (if the
    Employer is the Sponsor, the Trustee shall discontinue
    disbursements for payment of benefits to all Participants) and
    shall hold the assets of the
    sub-trust
    with respect to such Employer for the benefit of such
    Employer’s general creditors. Nothing in this Agreement
    shall in any way diminish any rights of Participants to pursue
    their rights as general creditors of the Employer (and/or the
    Sponsor) with respect to benefits due under the Plan or
    otherwise.



 



    (iv) Trustee shall resume disbursement for the payment of
    benefits to Participants in accordance with this Agreement only
    after Trustee has determined that the Employer (and/or Sponsor)
    is not Insolvent (or is no longer Insolvent).



 



    (c) Provided that there are sufficient assets, if Trustee
    discontinues the payment of benefits from the Trust pursuant to
    (a) hereof and subsequently resumes such payments, the
    first payment following such discontinuance shall include the
    aggregate amount of all payments due to Participants under the
    terms of the Plan for the period of such discontinuance, less
    the aggregate amount of any payments made to Participants by the
    Employer or Sponsor in lieu of the payments provided for
    hereunder during any such period of discontinuance.



 




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    Section 14.  Amendment
    or Modification.



 



    This Agreement may be amended or modified at any time and from
    time to time only by an instrument executed by both the Sponsor
    and the Trustee. The individuals authorized to sign such
    instrument shall be those authorized by the Sponsor and the
    Trustee respectively. Notwithstanding the foregoing, but subject
    to Section 7, the Trustee reserves the right to
    unilaterally amend this Agreement to update services and
    procedures and to revise the fee schedule upon 120 days
    notice to the Sponsor.



 



    Section 15.  Electronic
    Services.



 



    (a) The Trustee may provide communications and Electronic
    Services via electronic media, including, but not limited to
    NetBenefits, eWorkplace and Fidelity Plan Sponsor WebStation.
    The Sponsor agrees to use such Electronic Services only in the
    course of reasonable administration of or participation in the
    Plan and to keep confidential and not alter, publish, copy,
    broadcast, retransmit, reproduce, frame-in, link to,
    commercially exploit or otherwise redisseminate the Electronic
    Services, any content associated therewith, or any portion
    thereof (including, without limitation, any trademarks and
    service marks associated therewith), without the written consent
    of the Trustee. Notwithstanding the foregoing, the Trustee
    acknowledges that certain Electronic Services may, by their
    nature, be intended for non-commercial, personal use by
    Participants or their beneficiaries, with respect to their
    participation in the Plan, or for their other retirement or
    employee benefit planning purposes, and certain content may be
    intended or permitted to be modified by the Sponsor in
    connection with the administration of the Plan. In such cases,
    the Trustee will notify the Sponsor of such fact, and any
    requirements or guidelines associated with such usage or
    modification no later than the time of initial delivery of such
    Electronic Services. To the extent permission is granted to make
    Electronic Services available to administrative personnel
    designated by the Sponsor, it shall be the responsibility of the
    Sponsor to keep the Trustee informed as to which of the Sponsor
    personnel are authorized to have such access. Except to the
    extent otherwise specifically agreed by the parties, the Trustee
    reserves the right, upon notice when reasonably feasible, to
    modify or discontinue Electronic Services, or any portion
    thereof, at any time.


 



    (b) Without limiting the responsibilities of the Trustee or
    the rights of the Sponsor stated elsewhere in this Agreement,
    Electronic Services shall be provided to the Sponsor without
    acceptance of legal liability related to or arising out of the
    electronic nature of the delivery or provision of such Services.
    To the extent that any Electronic Services utilize Internet
    services to transport data or communications, the Trustee will
    take, and the Sponsor agrees to follow, reasonable security
    precautions. However, the Trustee disclaims any liability for
    interception of any such data or communications. The Trustee
    reserves the right not to accept data or communications
    transmitted electronically or via electronic media by the
    Sponsor or a third party if it determines that the method of
    delivery does not provide adequate data security, or if it is
    not administratively feasible for the Trustee to use the data
    security provided. The Trustee shall not be responsible for, and
    makes no warranties regarding access, speed or availability of
    Internet or network services, or any other service required for
    electronic communication, nor does the Trustee make any
    warranties, express or implied, and specifically disclaims all
    warranties of merchantability, fitness for a particular purpose,
    or non-infringement. The Trustee shall not be responsible for
    any loss or damage related to or resulting from any changes or
    modifications to the Electronic Services made in violation of
    this Agreement.



 



    (c) The Sponsor acknowledges that certain web sites through
    which the Electronic Services are accessed may be protected by
    passwords or require a login and the Sponsor agrees that neither
    the Sponsor nor, where applicable, Participants, will obtain or
    attempt to obtain unauthorized access to such Services or to any
    other protected materials or information, through any means not
    intentionally made available by the Trustee for the specific use
    of the Sponsor. To the extent that a PIN is necessary for access
    to the Electronic Services, the Sponsor


 




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and/or its
    Participants, as the case may be, are solely responsible for all
    activities that occur in connection with such PINs.



 



    (d) The Trustee will provide to Participants the
    FullViewsm

    service via NetBenefits, through which Participants may elect to
    consolidate and manage any retirement account information
    available through NetBenefits as well as External Account
    Information. To the extent not provided by the Trustee or its
    affiliates, the data aggregation service will be provided by
    Yodlee.com, Inc. or such other independent provider as the
    Trustee may select, pursuant to a contract that requires the
    provider to take appropriate steps to protect the privacy and
    confidentiality of information furnished by users of the
    service. The Sponsor acknowledges that Participants who elect to
    use
    FullViewsm

    must provide passwords and PINs to the provider of data
    aggregation services. The Trustee will use External Account
    Information to furnish and support
    FullViewsm

    or other services provided pursuant to this Agreement, and as
    otherwise directed by the Participant. The Trustee will not
    furnish External Account Information to any third party, except
    pursuant to subpoena or other applicable law. The Sponsor agrees
    that the information accumulated through
    FullViewsm

    shall not be made available to the Sponsor, provided, however,
    that the Trustee shall provide to the Sponsor, upon request,
    aggregate usage data that contains no personally identifiable
    information.



 



    Section 16.  Assignment.



 



    This Agreement, and any of its rights and obligations hereunder,
    may not be assigned by any party without the prior written
    consent of the other party(ies), and such consent may be
    withheld in any party’s sole discretion. Notwithstanding
    the foregoing, Trustee may assign this Agreement in whole or in
    part, and any of its rights and obligations hereunder, to a
    subsidiary or affiliate of Trustee without consent of the
    Sponsor. All provisions in this Agreement shall extend to and be
    binding upon the parties hereto and their respective successors
    and permitted assigns.



 



    Section 17.  Force
    Majeure.



 



    No party shall be deemed in default of this Agreement to the
    extent that any delay or failure in performance of its
    obligation(s) results, without its fault or negligence, from any
    cause beyond its reasonable control, such as acts of God, acts
    of civil or military authority, acts of terrorism, whether
    actual or threatened, quarantines, embargoes, epidemics, war,
    riots, insurrections, fires, explosions, earthquakes, floods,
    unusually severe weather conditions, power outages or strikes.
    This clause shall not excuse any of the parties to the Agreement
    from any liability which results from failure to have in place
    reasonable disaster recovery and safeguarding plans adequate for
    protection of all data each of the parties to the Agreement are
    responsible for maintaining for the Plan.


 



    Section 18.  Confidentiality;
    Safeguarding of Data.



 



    (a) Confidential Information.  In
    connection with this Agreement, each of the parties has
    disclosed and may continue to disclose to the other party
    information that relates to the disclosing party’s business
    operations, financial condition, employees, former employees,
    eligible dependents and beneficiaries of such employees and
    former employees, customers, business associates, products,
    services or technical knowledge. Except as otherwise
    specifically agreed in writing by the parties, Trustee and
    Sponsor each agree that from and after the Effective Date
    (i) all information communicated to it before or after the
    Effective Date by the other and identified as confidential or
    proprietary, (ii) all information identified as
    confidential or proprietary to which it has access in connection
    with the services, whether such access was before or after the
    Effective Date, (iii) all information communicated to it
    that reasonably should have been understood by the receiving
    party to be proprietary and confidential to the disclosing party
    including without limitation




 




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technical, trade secret or business
    information, financial information, business or marketing
    strategies or plans, product development or customer
    information, and (iv) the terms and conditions of this
    Agreement (collectively, the “Confidential
    Information”) will be used only in accordance with this
    Agreement.



 



    (b) Ownership of Information/Safeguarding
    Information.  Each party’s Confidential
    Information will remain the property of that party except as
    otherwise expressly provided in this Agreement. Each party will
    use at least the same degree of care to safeguard and to prevent
    disclosing to third parties the Confidential Information of the
    other as it employs to avoid unauthorized disclosure or
    publication of its own information (or information of its
    customers) of a similar nature, and in any event, no less than
    reasonable care. Each party may use and disclose relevant
    aspects of the other party’s Confidential Information to
    its employees, affiliates, subcontractors and agents to the
    extent such disclosure is reasonably necessary for the
    performance of its obligations under this Agreement or the
    enforcement of its rights under this Agreement; provided,
    however, that the disclosing party shall ensure that such
    parties agree to be bound by confidentiality provisions at least
    as restrictive as those set forth in this Section 18; and
    provided further, however, that in no event shall Sponsor
    disclose such Confidential Information to direct competitors of
    the Trustee. Each party will be responsible for any improper
    disclosure of Confidential Information by such party’s
    employees, affiliates, subcontractors or agents. Neither party
    will (i) make any use or copies of the Confidential
    Information of the other except as contemplated by this
    Agreement, or (ii) sell, assign, lease or otherwise
    commercially exploit the Confidential Information (or any
    derivative works thereof) of the other party. Neither party will
    withhold the Confidential Information of the other party
    (including in the case of the Sponsor, the Personal Data) or
    refuse for any reason (including due to the other party’s
    actual or alleged breach of this Agreement) to promptly return
    to the other party its Confidential Information (including
    copies thereof) if requested to do so.



 



    (c) Return of Information.  Upon
    expiration or any termination of this Agreement and completion
    of a party’s obligations under this Agreement, each party
    will return or destroy, as the owner may direct, all
    documentation in any medium that contains or refers to the other
    party’s Confidential Information; however, each party may
    retain copies of Confidential Information of the other party
    solely to the extent required for compliance with applicable
    professional standards and applicable law.



 



    (d) Exceptions to Confidential
    Treatment.  Sections 18(a), (b) and
    (c) shall not apply to any particular information that
    either party can demonstrate (i) was, at the time of
    disclosure to it (a) already known to the receiving party
    (and not subject to a pre-existing confidentiality agreement) or
    (b) publicly known; (ii) after disclosure to it,
    becomes publicly known through no fault of the receiving party;
    (iii) was received after disclosure to it from a third
    party who did not indicate that the information was to be
    treated as confidential in connection with the
    disclosure or (iv) was independently developed by the
    receiving party without use of the Confidential Information of
    the disclosing party. In addition, a party will not be
    considered to have breached its obligations under this
    Section 18 for disclosing Confidential Information of the
    other party to the extent required to satisfy any valid
    subpoena, court order, litigation or regulatory request, or any
    other legal requirement of a competent governmental authority,
    provided that following receipt of any such request, or making a
    determination that disclosure is legally required, and to the
    extent that it may legally do so, such party advises the other
    party prior to making such disclosure in order that the other
    party may object to such disclosure, take action to ensure
    confidential


 



    treatment of the Confidential Information, or take such other
    action as it considers appropriate to protect the Confidential
    Information. In addition, Trustee will not be considered to have
    breached its obligations under this Section 18 for using or
    disclosing Confidential Information to the extent Trustee or an
    affiliate of the Trustee is specifically authorized by an
    individual to use that individual’s personal information
    (including plan-related and account-related information
    applicable to that individual) in connection with any other
    Trustee products or services.











 




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    (e) No Duty to Disclose.  Nothing
    contained in this Section 18 will be construed as
    obligating a party to disclose its Confidential Information to
    the other party, or as granting to or conferring on a party,
    expressly or impliedly, any rights or license to the
    Confidential Information of the other party provided that
    Trustee shall be excused from its obligations to perform
    hereunder to the extent Sponsor fails to provide any such
    information as is reasonably necessary for Trustee to perform
    the services and otherwise meet its obligations hereunder.



 



    (f) Personal Data.  In order to
    fulfill its obligations under this Agreement, Trustee may
    receive in connection with this Agreement or the services
    provided hereunder personal data, including compensation,
    benefits, tax, marital/family status and other similar
    information about participants (“Personal Data”).
    Trustee acknowledges that it is receiving Personal Data only in
    connection with the performance of the services and Trustee will
    not use or disclose Personal Data without the permission of the
    Sponsor for any purpose other than as permitted in this
    Agreement and in fulfilling its obligations under this
    Agreement, unless disclosure is required or permitted under this
    Agreement or by applicable law. With respect to Personal Data it
    receives under this Agreement, Trustee agrees to
    (i) safeguard Personal Data in accordance with its privacy
    policy, and (ii) exercise at least the same standard of
    care in safeguarding such Personal Data that it uses to protect
    the personal data of its own employees. Nothing in this
    Agreement shall affect in any way other product or service
    arrangements entered into separately by Trustee or its
    affiliates and the Sponsor
    and/or
    participants.



 



    (g) Foreign Data Protection
    Laws.  Sponsor is responsible for any and all

    activities necessary to ensure compliance with applicable laws
    regarding data protection outside of the United States and for
    ensuring that the transfer of Personal Data to Trustee is in
    compliance with such laws. Sponsor will not transfer any
    Personal Data to Trustee unless Sponsor has satisfied such laws,
    such as through the use of consents. Trustee will be entitled to
    presume that, unless notified to the contrary by Sponsor,
    activities necessary to ensure compliance with such laws have
    been satisfied by Sponsor with respect to all Personal Data
    furnished to Trustee hereunder. Trustee will have no obligation
    to process any Personal Data if Trustee is on notice that
    compliance with such laws has not been met.



 



    Section 19.  General.



 



    (a) Performance by Trustee, its Agents or
    Affiliates.



 



    The Sponsor acknowledges and authorizes that the services to be
    provided under this Agreement shall be provided by the Trustee,
    its agents or affiliates, and that certain of such services may
    be provided pursuant to one or more other contractual agreements
    or relationships.



 



    (b) Entire Agreement.



 



    This Agreement, together with the Schedules referenced herein,
    contains all of the terms agreed upon between the parties with
    respect to the subject matter hereof. This Agreement supersedes
    any and all other agreements, written or oral, made by the
    parties with respect to the services.



 



    (c) Waiver.



 



    No waiver by either party of any failure or refusal to comply
    with an obligation hereunder shall be deemed a waiver of any
    other obligation hereunder or subsequent failure or refusal to
    comply with any other obligation hereunder.



 



    (d) Successors and Assigns.



 




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    The stipulations in this Agreement shall inure to the benefit
    of, and shall bind, the successors and assigns of the respective
    parties.


 


    (e) Partial Invalidity.



 



    If any term or provision of this Agreement or the application
    thereof to any person or circumstances shall, to any extent, be
    invalid or unenforceable, the remainder of this Agreement, or
    the application of such term or provision to persons or
    circumstances other than those as to which it is held invalid or
    unenforceable, shall not be affected thereby, and each term and
    provision of this Agreement shall be valid and enforceable to
    the fullest extent permitted by law.



 



    (f) Section Headings.



 



    The headings of the various sections and subsections of this
    Agreement have been inserted only for the purposes of
    convenience and are not part of this Agreement and shall not be
    deemed in any manner to modify, explain, expand or restrict any
    of the provisions of this Agreement.



 



    (g) Communications.



 



    In the event that the Sponsor retains any responsibility for
    delivering Participant communications to some or all
    Participants and beneficiaries, the Sponsor agrees to furnish
    the communications to such Participants in a timely manner as
    determined under applicable law.



 



    The provisions of this Agreement shall apply to all information
    provided and all Participant communications prepared and
    delivered by the Sponsor or the Trustee during the
    implementation period prior to the execution date of this
    Agreement and throughout the term set forth in this Agreement.



 



    (h) Survival.



 



    Trustee’s and Sponsor’s respective obligations under
    this Agreement, which by their nature would continue beyond the
    termination of this Agreement, including but not limited to
    those contained in Sections titled Inspection and Audit,
    Indemnification, Confidentiality; Safeguarding of Data, shall
    survive any termination of the Agreement.



 



    Section 20.  Authorization
    To Make Available Fidelity Personal Guidance Offerings.



 



    Notwithstanding any provision of the Agreement to the contrary,
    Sponsor hereby authorizes Trustee, Fidelity Employer Services
    Company LLC, Fidelity Brokerage Services LLC, and other
    affiliates of the Trustee, throughout the term of this Agreement
    and any extensions thereto, to provide
    and/or offer
    personal
    and/or
    workplace services, programs, and products (collectively,
    “Personal Guidance Offerings”) to any and all Persons
    with respect to whom the Trustee receives any information
    hereunder, including Personal Guidance Offerings unrelated to
    retirement or employment, and the Trustee may use for such
    purpose any information received hereunder or otherwise related
    to the Plan or Sponsor. Such information shall be treated in
    accordance with Fidelity Investments’ privacy policy. Any
    information collected by the Trustee in the course of providing
    Personal Guidance Offerings may be retained and used by the
    Trustee, Fidelity Employer Services Company LLC, Fidelity
    Brokerage Services LLC, or affiliates of the Trustee after the
    termination of this Agreement. Persons who request that the
    Trustee discontinue communications related to Personal Guidance
    Offerings other than workplace-related offerings shall be
    permitted to do so in accordance with industry rules and
    practices and through various means that may be specific by
    communication medium. Trustee agrees to defend, indemnify and
    hold harmless the Sponsor against any Losses, brought against
    the Sponsor by any individual who is contacted by the Trustee or
    any of its affiliates pursuant to the Sponsor’s
    authorizations in


 


 




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Section 20 where such claims or Losses
    allege that actions taken by Trustee or its affiliates in the
    marketing, sale or servicing of any product were
    (i) negligent, fraudulent, misleading, or inaccurate,
    (ii) in violation of applicable law, or (iii) in
    breach of the terms of any agreement(s) entered into between
    such individual and Trustee (or its affiliate) with respect to
    such products. Sponsor shall be solely responsible for ensuring
    that its authorizations in Section 20 comply with all laws,
    policies and contracts to which the Sponsor is subject.


 


    Section 21.  Situs
    of Trust Assets.



 



    The Sponsor and the Trustee agree that no assets of the Trust
    shall be located or transferred outside of the United States.



 



    Section 22.  Governing
    Law.



 



    (a) Massachusetts Law Controls.



 



    This Agreement is being made in the Commonwealth of
    Massachusetts, and the Trust shall be administered as a
    Massachusetts trust. The validity, construction, effect, and
    administration of this Agreement shall be governed by and
    interpreted in accordance with the laws of the Commonwealth of
    Massachusetts.



 



    (b) Trust Agreement Controls.



 



    The Trustee is not a party to the Plan, and in the event of any
    conflict between the provisions of the Plan and the provisions
    of this Agreement, the provisions of this Agreement shall
    control.


 


 




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    IN WITNESS WHEREOF, the parties hereto have caused this
    Agreement to be executed by their duly authorized officers as of
    the day and year first above written. By signing below, the
    undersigned represent that they are authorized to execute this
    Agreement on behalf of the respective parties. Each party may
    rely without duty of inquiry on the foregoing representation.



 



    BRUSH ENGINEERED MATERIALS INC.



 


			
	 	    By: 
	
        









    Authorized Signatory




    Name:     




    Title:




    Date:



 



    FIDELITY MANAGEMENT TRUST COMPANY



 


			
	 	    By: 
	
        









    FMTC Authorized Signatory




    Name:     




    Date:


 


 




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