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
