HARSCO NON-QUALIFIED RETIREMENT SAVINGS & INVESTMENT PLAN

Page

ARTICLE I

Establishment of Plan

1

1.1

Purpose

1

1.2

Tax/ERISA

1

1.3

Effective Date

1

1.4

2009 Amendment and Restatement

1

ARTICLE II

Definitions

2

2.1

Account

2

2.2

Ancillary Agreement

2

2.3

Beneficiary

2

2.4

Board

2

2.5

Change In Control

2

2.6

Committee

3

2.7

Compensation

3

2.8

Deferred

3

2.9

Participant

3

2.10

Pension Committee

3

2.11

Post-2004 Subaccount

3

2.12

Pre-2005 Subaccount

3

2.13

RSIP

3

2.14

Retirement

3

2.15

Separation from Service

4

2.16

Valuation Date

4

ARTICLE III

Eligibility and Vesting

5

3.1

Eligibility to Participate in the Plan

5

3.2

Participation

5

3.3

Vesting

5

ARTICLE IV

Non-Qualified Retirement Savings & Investment Plan (NQRSIP) Benefits

6

4.1

NQRSIP Benefit

6

4.2

Allocation of NQRSIP Benefit

6

4.3

Valuation of Participant’s Post-2004 Subaccount

6

4.4

Crediting Investment Returns

6

ARTICLE V

Non-Qualified RSIP Benefit Distributions

7

5.1

Payment of Post-2004 Subaccount upon Termination, Retirement, or Change In Control

7

5.2

Payment of Benefits to Beneficiary

7

ARTICLE VI

Administration

8

6.1

Administration of the Plan

8

6.2

Cost of Administering the Plan

8

6.3

Agents

8

6.4

Indemnification of the Committee

8

ARTICLE VII

Amendment and Termination

9

7.1

Amendment

9

7.2

Termination

9

ARTICLE VIII

Miscellaneous

10

8.1

No Right of Employment

10

8.2

Withholding

10

8.3

Non-Assignability of Benefits

10

8.4

Unfunded Status

10

8.5

Forfeiture on Termination For Cause

10

8.6

Gender and Number

10

8.7

Controlling Law

10

8.8

Successors

11

8.9

Code Section 409A

11

1.1  

Purpose .  The Harsco Non-Qualified Retirement Savings & Investment Plan (“Plan” or “NQRSIP”) was established by Harsco Corporation (“Corporation”) to compensate participating employees for government-imposed reductions in benefits from and/or contributions to the tax-qualified Harsco Retirement Savings & Investment Plan (“RSIP”) 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, 2004.  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 January 1, 2004 Plan document, applies to compensation that was Deferred during calendar years ending prior to January 1, 2005 and which had become vested prior to said date, in accordance with the terms of those documents in effect from time to time prior to October 3, 2004.  The provisions of this Part B shall apply to compensation that is Deferred during calendar years beginning on or after January 1, 2005, or that was previously Deferred but not vested prior to said date.  This Part B of the Plan is intended to meet all of the requirements of Section 409A of the Code, 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 compensation that was 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 terms of the Plan shall be administered in accordance with a reasonable, good faith interpretation of Code Section 409A, and such interpretation shall govern the rights of a Participant with respect to that period of time.

2.1  

Account .  The sum of the Corporation contributions and the investment returns thereon allocated to each Participant under this Plan in accordance with the provisions of Article IV.  A Participant’s Account will be divided into the following subaccounts:  (a) a “Pre-2005 Subaccount” for amounts Deferred by a Participant and vested for purposes of Code Section 409A as of December 31, 2004 (and earnings and losses thereon), and (b) a “Post-2004 Subaccount” for amounts Deferred by a Participant and/or vested for purposes of Code Section 409A after December 31, 2004 (and earnings and losses thereon).  Amounts in the Pre-2005 Subaccounts, which are intended to qualify for “grandfathered” status, shall be subject to the terms and conditions specified in Part A of the Plan as in effect on or before October 3, 2004.  The Account is not funded and is a bookkeeping record of the benefits to which a Participant is entitled under the terms of the Plan.

2.2  

Ancillary Agreement .  An instrument by which special arrangements for specific Participants are incorporated into this Plan.

2.3  

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.

2.4  

Board .  The Board of Directors of the Corporation.

2.5  

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 30 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 30 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 30% 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 Board 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 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.  Notwithstanding the foregoing, this Section 2.5(d) shall be interpreted in a manner consistent with Code Section 409A and applicable provisions of the Treasury Regulations.

2.6  

Committee .  The Management Development and Compensation Committee of the Board or such other committee as may be designated by the Board.

2.7  

Compensation .  The amount reported by the Corporation for a Participant as “wages, tips and other compensation” on Form W-2, or any successor method of reporting under Code Section 6041(d), plus any salary reductions pursuant to Code Sections 125, 132(f), 402(e)(3), 402(h), 403(b), 414(h)(2) or 457, but excluding any taxable fringe benefits such as restricted stock, moving expenses, tuition reimbursements and imputed income from life insurance.   

2.8  

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).

2.9  

Participant .  An officer or other employee of the Corporation who has been approved for participation in the Plan pursuant to Article III.

2.10  

Pension Committee .  The Committee appointed by the Board of Directors or a Committee thereof to administer qualified and nonqualified pension plans.

2.11  

Post-2004 Subaccount . The term defined in Section 2.1.

2.12  

Pre-2005 Subaccount .  The term defined in Section 2.1.

2.13  

RSIP .  The relevant tax-qualified plan known as the Harsco Retirement Savings and Investment Plan.

2.14  

Retirement .  The later of the date of the Participant’s 65 ^th birthday or attainment of 5 Years of Vesting Service, determined in accordance with the provisions of the RSIP.  With respect to a Participant with a Prior Employer Account (as such term is defined in the RS