EXHIBIT
10(k)
HARSCO CORPORATION
SUPPLEMENTAL RETIREMENT BENEFIT
PLAN
PART B – AMENDMENT AND
RESTATEMENT AS OF JANUARY 1, 2009
ARTICLE I
Establishment of
Plan
1.1
Purpose . The Harsco Corporation Supplemental
Retirement Benefit Plan ("Plan") was established by Harsco
Corporation ("Corporation") to provide supplemental retirement
benefits to designated corporate and division officers and to
compensate them for government-imposed reductions in benefits from
and/or contributions to the tax-qualified plans in which they
participate.
1.2
Tax/ERISA . The Corporation intends that the Plan
shall at all times be maintained on an unfunded basis for federal
income tax purposes under the Internal Revenue Code of 1986, as
amended ("Code"), and administered as a "top-hat" plan exempt from
the substantive requirements of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
1.3
2009 Amendment and Restatement . The Plan was adopted as
of January 1, 1986 and restated as of October 4, 2002,
effective for participating employees whose retirement or other
termination date occurs on or after January 1, 2003. The
Plan is hereby again amended and restated, effective as of January
1, 2009, by the adoption of Part B of the Plan, as set forth
herein. Part A of the Plan, consisting of the October 4,
2002 Amendment and Restatement of the Plan, applies to a
Participant’s benefit or any portion thereof that is
considered to have been Deferred under the Plan prior to January 1,
2005 and which had become vested prior to said date (the
“Section 409A Grandfathered Benefit”), in accordance
with the terms of those documents in effect from time to time prior
to October 3, 2004. The Section 409A Grandfathered
Benefit shall continue to be governed by the law applicable to
nonqualified deferred compensation prior to the codification of
Code Section 409A. The provisions of this Part B shall
apply to any portion of a Participant’s benefit that is
considered to have been Deferred during calendar years beginning on
or after January 1, 2005, and any portion of a Participant’s
benefit that was Deferred prior to January 1, 2005 but was not
vested prior to said date. This Part B of the Plan is
intended to meet all of the requirements of Code Section 409A, so
that Participants will be eligible to defer the receipt of, and the
liability for the federal income tax with respect to, certain items
of compensation from one year to a later year in accordance with
the provisions of applicable law and the provisions of the
Plan. With respect to the period commencing January 1,
2005 and ending December 31, 2008 and with respect to the portion
of a Participant’s benefit that is considered to have been
Deferred during the 2005, 2006, 2007 and 2008 calendar years, or
that was Deferred prior to January 1, 2005 but became vested during
the period January 1, 2005 through December 31, 2008, the Plan was
administered in accordance with a reasonable, good faith
interpretation of Code Section 409A, Treasury Regulations, IRS
Notices and other guidance issued thereunder, and such
interpretation shall govern the rights of a Participant with
respect to that period of time.
ARTICLE II
Definitions
2.1
Accrued Benefit . The Supplemental Pension
Benefit and the Supplemental Savings Benefit earned by a
Participant under this Plan in accordance with the provisions of
Article IV.
2.2
Actuarial Equivalent or Actuarially Equivalent
. With respect to an Accrued Benefit, an amount of
equivalent value determined on such actuarial basis as the
Committee, in its sole discretion, shall determine is reasonable
and appropriate and which shall be applied by the Committee in a
uniform and consistent manner.
2.3
Ancillary Agreement . An instrument by which
special arrangements for specific Participants are incorporated
into this Plan.
2.4
Beneficiary . Any person designated by a
Participant to receive benefits which may be due, or become due,
under this Plan. If a Participant made no such
designation, or if the designated person predeceases the
Participant, the Beneficiary shall be the Participant's
estate.
2.5
Board . The Board of Directors of the
Corporation.
2.6
Change In Control . The first to occur of any one
of the events described below:
(a)
Stock Acquisition . Any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934 ["the 1934 Act"], other than the Corporation or a
corporation, a majority of whose outstanding stock entitled to vote
is owned, directly or indirectly, by the Corporation, who is or
becomes, other than by purchase from the Corporation or such a
corporation, the "beneficial owner" (as such term is defined in
Rule 13(d)-3 under the 1934 Act), directly or indirectly, of
securities of the Corporation representing 20 percent or more of
the combined voting power of the Corporation's then outstanding
voting securities. Such a Change in Control shall be
deemed to have occurred on the first to occur of the date
securities are first purchased by a tender or exchange offer, or
the date on which the Corporation first learns of acquisition of 20
percent of such securities, or the later of the effective date of
an agreement for the merger, consolidation or other reorganization
of the Corporation or Corporation shareholder approval thereof, as
the case may be.
(b)
The date that a tender or exchange offer by any Person (other than
the Corporation or Subsidiary) is first published or sent or given
within the meaning of Rule 14e-2(a) of the General Rules and
Regulations under the Exchange Act as may be amended, supplemented
or superseded from time to time, if upon consummation thereof, such
Person would be the Beneficial Owner of 20% or more of the combined
voting power of the Corporation’s outstanding voting
securities.
(c)
Change in Board . During any period of two
consecutive years, individuals who at the beginning of such period
were members of the Board of Directors ceases for any reason to
constitute at least a majority of the Board of Directors, unless
the election or nomination for election by the Corporation's
shareholders of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of the period. Such a Change
in Control shall be deemed to have occurred on the date upon which
the requisite majority of directors fails to be elected by the
shareholders of the Corporation.
(d)
Other Events . Any other event or series of
events which, notwithstanding any other provision of this
definition, is determined by a majority of the outside members of
the Board of Directors of the Corporation to constitute a Change in
Control of the Corporation for purposes of this Supplemental
Plan. Such a Change in Control shall be deemed to have
occurred on the date of such determination or on such other date as
such majority of outside members of the Board shall
specify.
2.7
Committee . The Management Development and
Compensation Committee of the Board or such other committee as may
be designated by the Board.
2.8
Compensation . Total base salary plus 100% of
nondiscretionary incentive compensation, (including the value of
the awards made under the 1995 Executive Incentive Compensation
Plan in common stock as of the date of the award, or in cash, and
regardless of whether any such stock award is later forfeited) all
taken into account when paid according to the provisions of a
regular written plan covering officers as approved by the Board or
a Committee thereof. Effective January 1, 2003, the
definition of Compensation is modified to include 50% of
nondiscretionary incentive compensation paid on or after January 1,
2003.
2.9
Credited Service . Service with Harsco and with
any predecessor company acquired by or merged into Harsco if such
service with the predecessor company is granted by the Board of
Directors or a Committee thereof. In computing Credited
Service hereunder, the Corporation shall act in accordance with (a)
rules applicable to the Related Harsco Plan or (b) if different,
rules established by the Board of Directors or a Committee
thereof.
2.10
Deferred . An amount that is considered to be
deferred within the meaning of Treasury Regulations sections
1.409A-6(a)(2) and 1.409A-6(a)(3).
2.11
Early Retirement Date . The first day of the
month following the Participant's attainment of 55 years of age and
15 years of Credited Service.
2.12
Final Average Compensation . A Participant's
average annual Compensation for the 60 highest consecutive out of
the last 120 months prior to the
date of
retirement or Separation from Service for any reason prior to
Normal Retirement Date. If, due to absence because of
disability or temporary layoff, a Participant's Compensation during
any 12 month period in any of said 120 months falls below 75% of
what it would have been had it not been for such absence, such
period or periods shall be excluded and contiguous periods of
months shall be used in determining the 60 highest consecutive
months.
2.13
Normal Retirement Date . The first day of the
month following the Participant's 65th birthday.
2.14
Participant . An officer or other employee of the
Corporation who has been approved for participation in the Plan
pursuant to Article III.
2.15
Pension Committee . The Committee appointed by
the Board of Directors or a Committee thereof to administer
qualified and nonqualified pension plans.
2.16
Post-2004 Supplemental Pension Benefit . Any
portion of a Participant’s Accrued Benefit that was not
Deferred and vested as of December 31, 2004.
2.17
Postponed Retirement Date . The first date of the
month following the Participant's Separation from Service after his
Normal Retirement Date.
2.18
Related Harsco Plan . The Related Harsco Plan
shall be, with respect to the Supplemental Pension Benefit, the
Harsco Employees Pension Plan and, with respect to the Supplemental
Savings Benefit, the Harsco Retirement Savings and Investment
Plan.
2.19
Separation from Service . A “separation
from service” within the meaning of Code Section 409A and
regulations issued thereunder.
2.20
Social Security Covered Compensation . As defined
by Social Security Integration Table I - (see attached Exhibit
1). This table is subject to change as Social Security
covered compensation maximums are changed.
2.21
Supplemental Pension Formula . 0.8% of Final
Average Compensation, up to the Social Security Covered
Compensation plus 1.5% of Final Average Compensation in excess of
the Social Security Covered Compensation, multiplied by Credited
Service to a maximum of 33 years and divided by 12.
No
Participant’s Supplemental Pension Benefit taken on or after
January 1, 2003 shall be less than his Accrued Benefit as of
December 31, 2002 under the prior formula (0.8% of Final Average
Compensation, up to the Social Security Covered Compensation plus
1.6% of Final Average Compensation in excess of the Social Security
Covered Compensation, multiplied by Credited Service to a maximum
of 33 years and divided by 12).
Notwithstanding
the foregoing, the Supplemental Pension Formula for a designated
Nonofficer Key Employee will be 1.5% per year of Credited Service
up to a maximum of 33 years, multiplied by Final Average
Compensation and divided by 12.
ARTICLE III
Eligibility and
Vesting
3.1
Eligibility to Participate in the Plan . All
officers of the Corporation, and division officers elected by the
Board of Directors shall be eligible to participate in this
Plan. Also eligible to participate will be Nonofficer
Key Employees designated by the Chief Executive Officer (to be
listed on the attached Schedule A) from time to time effective for
retirements on or after January 1, 1999.
3.2
Vesting . A Participant's right to his
Supplemental Savings Plan Benefit under the Plan shall be 100%
vested and nonforfeitable at all times. Except as
provided below, a Participant’s right to his Supplemental
Pension Benefit under the Plan shall vest and become nonforfeitable
upon completion of 5 Years of Vesting Service (as such term is
defined in the Related Harsco Plan). A designated
Nonofficer Key Employee’s Supplemental Pension Benefit will
become 100% vested upon the earliest of the Nonofficer Key
Employee’s attainment of age 58 with 25 years Credited
Service, age 60 with 15 years of Credited Service, or age 65 with
10 years of Credi
