EXHIBIT
10(d)
HARSCO
CORPORATION
CHANGE IN CONTROL SEVERANCE
AGREEMENT
This AGREEMENT is by and between Harsco
Corporation, a Delaware corporation (the “Company”),
and __________________ (the “Executive”), dated as of
the 31 st
day of December, 2008.
WHEREAS, the Company recognizes that the current
business environment makes it difficult to attract and retain
highly-qualified executives unless a certain degree of security can
be offered to such executives against organizational and personnel
changes which frequently follow Changes in Control (as defined
below) of a corporation; and
WHEREAS, the Board of Directors recognizes the
long and valued service which the Executive has provided as an
officer of Harsco and considers the Executive to be an important
resource which the Company desires to retain; and
WHEREAS, the Company desires to assure fair
treatment of its key executives in the event of a Change in Control
and to allow them to make critical career decisions without undue
time pressure and financial uncertainty, thereby increasing their
willingness to remain with the Company notwithstanding the outcome
of a possible Change in Control transaction; and
WHEREAS, the Company recognizes that its key
executives will be involved in evaluating or negotiating any
offers, proposals, or other transactions which could result in
Changes in Control of the Company and believes that it is in the
best interests of the Company and its shareholders that such key
executives be in a position, free from personal financial and
employment considerations, to be able to assess objectively and
pursue aggressively the interests of the Company’s
shareholders in making these evaluations and carrying on such
negotiations; and
WHEREAS, the Board of Directors (the
“Board”) of the Company believes it is essential to
provide the Executive with compensation arrangements upon a Change
in Control which provide the Executive with individual financial
security and which are competitive with those of other
corporations, and in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement;
and
WHEREAS, the Company and the Executive have
previously entered into an agreement, dated _____________ (the
“Prior Agreement”) regarding compensation to be paid to
the Executive in certain circumstances, including following a
Change in Control; and
WHEREAS, the Company and the Executive desire to
replace and supersede the Prior Agreement with this
Agreement;
NOW THEREFORE, the parties, for good and
valuable consideration and intending to be legally bound, agree as
follows:
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The “Term
of the Agreement” is the period commencing on the date hereof
and ending on the third anniversary of such date provided ,
however , that (i) commencing on the date one year after the
date hereof, and on each annual anniversary of such date (such date
and each annual anniversary thereof is hereinafter referred to as
the “Renewal Date”), the Term of the Agreement shall be
automatically extended so as to terminate three years from such
Renewal Date, unless at least 60 days prior to the Renewal Date the
Company shall give notice that the Term of the Agreement shall not
be so extended; and (ii) if a Change in Control occurs during the
Term of the Agreement, the Term of the Agreement will expire on the
last day of the Protection Period (as defined herein); and (iii)
if, prior to a Change in Control, the Executive ceases for any
reason to be an officer of the Company, thereupon without action,
the Term of the Agreement shall be deemed to have expired and this
Agreement will immediately terminate and be of no further
effect.
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The
“Effective Date” shall be the first date during the
“Term of the Agreement” as defined in Section 1(a) on
which a Change in Control occurs. Anything in this
Agreement to the contrary notwithstanding, if the Executive’s
employment with the Company terminates prior to the date on which a
Change in Control occurs, and the Executive reasonably demonstrates
that such termination (1) was at the request of a third party who
has taken steps reasonably calculated to effect a Change in Control
or (2) otherwise arose in connection with or anticipation of a
Change in Control, then for all purposes of this Agreement the
“Effective Date” shall mean the date immediately prior
to the date of such termination of employment.
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A reference
herein to a section of the Internal Revenue Code of 1986, as
amended (the “Code”) or a subsection thereof shall be
construed to incorporate reference to any section or subsection of
the Code enacted as a successor thereto, any applicable proposed,
temporary or final regulations promulgated pursuant to such
sections and any applicable interpretation thereof by the Internal
Revenue Service.
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“Present
Value,” for purposes of this Agreement, shall be determined
in accordance with Section 280G(d) (4) of the Code as of the date
specified for such determination, applying a discount rate,
compounded no less frequently than monthly, that is equivalent to
the rate specified for such determination.
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“Employee
Benefits” and “Employee Benefit Plans” means the
perquisites, benefits and service credit for benefits as provided
under any and all employee retirement income and welfare benefit
policies, plans, programs or arrangements in which the Executive is
entitled to participate, including without limitation any stock
option, performance share, performance unit, stock purchase, stock
appreciation, savings ,pension, supplemental executive retirement,
or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health,
medical/hospital or other insurance (whether funded by actual
insurance or self-insured by the Company), disability, salary
continuation, expense reimbursement and other employee benefit
policies, plans, programs or arrangements that may now exist or any
equivalent successor policies, plans, programs or arrangements that
may be adopted hereafter by the Company or any
successor.
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A reference
herein to a section of the Securities Exchange Act of 1934 (the
“Exchange Act”) or any Rule promulgated thereunder
shall be construed to incorporate reference to any section of the
Exchange Act or any Rule enacted or promulgated as a successor
thereto.
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Change in
Control . For
the purpose of this Agreement, a “Change in Control”
shall mean:
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The acquisition
(other than from the Company) by any person, entity or
“group,” within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act (a “Person”)
(excluding, for this purpose, the Company or its subsidiaries, or
any employee benefit plan of the Company or its subsidiaries which
acquires beneficial ownership of voting securities of the Company)
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the
then outstanding shares of common stock or the combined voting
power of the Company’s then outstanding voting securities
entitled to vote generally in the election of directors (the
“Voting Stock”); provided , however ,
that a Change in Control will not be deemed to have occurred if a
Person becomes the beneficial owner of 20% or more of the Voting
Stock as a result of a reduction in the number of shares of Voting
Stock outstanding pursuant to a transaction or series of
transactions that is approved by a majority of the Incumbent Board
(as defined below) unless and until such Person thereafter becomes
the beneficial owner of any additional shares of Voting Stock of
the Company representing 1% or more of the then-outstanding Voting
Stock of the Company, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which
all holders of Voting Stock are treated equally; or
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Individuals
who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board, provided that any person becoming
a director subsequent to the date hereof whose election, or
nomination for election by the Company’s stockholders, or
appointment, 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 and other than an election or nomination of an
individual whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election
of the directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) shall
be, for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or
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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 the stock or assets of another
corporation or other transaction (each, a “Business
Transaction”) with respect to which, in any such case, the
persons who were the stockholders of the Company immediately prior
to such Business Transaction do not, immediately thereafter, own
more than 50% of the combined voting power entitled to vote in the
election of directors of the entity resulting from such Business
Transaction; or
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Approval by the
stockholders of the Company of a liquidation or dissolution of the
Company or of the sale of all or substantially all the assets of
the Company.
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Notwithstanding
the foregoing, in the event payment to the Executive under this
Agreement is triggered by a Change in Control (as opposed to the
Executive's termination of employment following a Change in
Control), Section 2(a) shall be modified by the substitution of
"30%" for "20%" wherever such term appears in said Section 2(a) and
Section 2(b) shall be modified by the insertion of the words
"During any period of two consecutive calendar years" at the
beginning of said Section 2(b).
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Protection
Period . The
Company hereby agrees to continue the Executive in its employ, and
the Executive hereby agrees to remain in the employ of the Company,
for the period commencing on the Effective Date and ending on the
earlier to occur of (a) the third anniversary of such date; or (b)
the date that this Agreement otherwise terminates, as provided
herein (the “Protection Period”).
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Terms of
Employment During Protection Period .
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During the
Protection Period, (A) the Executive’s position (including
status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date and (B) the
Executive’s services shall be performed at the location where
the Executive was employed immediately preceding the Effective Date
or any office or location less than twenty-five (25) miles from
such location.
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During the
Protection Period, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to
devote reasonable attention and time during normal business hours
to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive’s reasonable best
efforts to perform faithfully and efficiently such
responsibilities. During the Protection Period it shall
not be a
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violation of
this Agreement for the Executive to (A) serve on corporate, civic
or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C)
manage personal investments, so long as such activities do not
significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities
have been conducted by the Executive prior to the Effective Date,
the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the
Company.
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Base
Salary . During the Protection Period, the
Executive shall receive a base salary (“Base Salary”)
at a monthly rate at least equal to the highest monthly base salary
paid or payable to the Executive by the Company during the
twelve-month period immediately preceding the month in which the
Effective Date occurs. During the Protection Period, the
Base Salary shall be reviewed at least annually and shall be
increased at any time and from time to time as shall be
substantially consistent with increases in base salary awarded in
the ordinary course of business to other key executives of the
Company and its subsidiaries. Any increase in Base
Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Base Salary shall
not be reduced after any such increase.
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Annual
Bonus . In
addition to Base Salary, the Executive shall be awarded, for each
fiscal year ending during the Protection Period, an annual bonus
(an “Annual Bonus”) (either pursuant to the Incentive
Compensation Plan of the Company or otherwise) in cash at least
equal to the average annual cash incentive payments received by the
Executive from the Company and its subsidiaries in respect of the
three fiscal years immediately preceding the fiscal year in which
the Effective Date occurs. Upon termination of the
Protection Period, the Company shall pay the Executive an Annual
Bonus for the year in which termination occurs, prorated to the end
of the Protection Period. Such annual Bonus shall be
paid in the calendar year following the calendar year in which the
amounts are earned, but in no event later than 2-1/2 months after
the end of the calendar year in which such amounts are
earned.
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Incentive,
Savings and Retirement Plans . In addition to Base Salary and
Annual Bonus payable as hereinabove provided, the Executive shall
be entitled to participate during the Protection Period in all
incentive, savings, pension supplemental executive retirement, and
other retirement plans, deferred compensation plans, stock option
plans and other equity and
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long-term
incentive plans and other plans, practices, policies and programs
applicable to other key executives of the Company and its
subsidiaries (including, without limitation, the Company’s
Incentive Compensation Plan, its Savings Plan and its Supplemental
Executive Retirement Plan), in each case providing benefits which
are the economic equivalent to those currently in effect or as
subsequently amended. Such plans, practices, policies
and programs, in the aggregate, shall provide the Executive with
compensation, benefits and reward opportunities at least as
favorable as the most favorable of such compensation, benefits and
reward opportunities provided by the Company for the Executive
under such plans, practices, policies and programs as in effect at
any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as provided
at any time thereafter with respect to other key executives of the
Company and its subsidiaries.
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Welfare
Benefit Plans. During the Protection Period, the
Executive and/or the Executive’s family, as the case may be,
shall be eligible for participation in, and shall receive all
benefits under, welfare benefit plans, practices, policies and
programs provided by the Company and its subsidiaries (including,
without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs), at least as
favorable as the most favorable of such plans, practices, policies
and programs in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive and/or the Executive’s family, as in effect at
any time thereafter with respect to other key executives of the
Company and its subsidiaries.
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Expenses . During the Protection Period, the
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and
other assistance, at least equal to the most favorable of the
foregoing provided to the Executive by the Company and its
subsidiaries at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter with respect to other
key executives of the Company and its subsidiaries.
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Vacation . During the Protection Period, the
Executive shall be entitled to paid vacation and holidays in
accordance with the most favorable plans, policies, programs and
practices of the Company and its subsidiaries as in effect at any
time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Executive, as in effect at any
time thereafter with
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