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HARSCO CORPORATION
1995 EXECUTIVE INCENTIVE COMPENSATION PLAN
As Amended and Restated
RESTRICTED STOCK UNIT AGREEMENT
FOR INTERNATIONAL EMPLOYEES
This
Restricted Stock Unit Agreement (the “Agreement”)
is made on this ____ day of _______, 2008 (the “Date of
Grant”) by and between Harsco Corporation, a Delaware
corporation (the “Company”) and
«Name», (the “Grantee”).
1.
Grant of Restricted Stock Units. Subject to and
upon the terms, conditions and restrictions set forth in this
Agreement (including the country-specific terms for the
Grantee’s country of residence set forth in the Appendix to
this Agreement) and in the Company’s 1995 Executive Incentive
Compensation Plan (as amended and restated January 27, 2004) and
any sub-plan to the 1995 Executive Incentive Compensation Plan (as
amended and restated January 27, 2004) for the Grantee’s
country of residence (together, the “Plan”), the
Company hereby grants to the Grantee as of the Date of Grant
«Number_of_RSUs» Restricted Stock Units (the
“Restricted Stock Units”), which shall become vested in
accordance with Section 3 hereof. Each Restricted Stock
Unit shall represent one share of Common Stock, $1.25 par value, of
the Company (the “Common Stock”) and shall at all times
be equal in value to one share of Common Stock. The
Restricted Stock Units will be credited to the Grantee in an
account established for the Grantee until payment in accordance
with Section 4 hereof.
Except
as expressly provided in this Agreement, capitalized terms
used herein will have the meaning ascribed to such terms in
the Plan.
2.
Restrictions on Transfer of Restricted Stock Units.
Neither the Restricted Stock Units granted hereby nor
any interest therein or in the Common Stock related thereto shall
be transferable prior to issuance of the Common Stock in settlement
of the Restricted Stock Unit Award other than by will or pursuant
to the laws of descent and distribution (or to a designated
Beneficiary in the event of the Grantee’s
death).
3.
Vesting of Restricted Stock Units.
(a)
The
Restricted Stock Units shall vest as to one-third of such
Restricted Stock Units on the first anniversary of the Date of
Grant and as to an additional one-third on each succeeding
anniversary date (each such date a “Vesting Date”), so
as to be 100% vested on the third anniversary thereto, conditioned
upon the Grantee’s continued employment with the Company or a
subsidiary as of each Vesting Date. Any Restricted Stock
Units not vested will be forfeited, except as provided in Section
3(b) below, if the Grantee ceases to be continuously employed by
his/her employer (the “Employer”) or the Company or any
of its subsidiaries prior to each Vesting Date. For
purposes of this Agreement, “continuously employed”
shall mean the absence of any interruption or termination of
employment with the Company or with a subsidiary of the
Company. Continuous employment shall not be considered
interrupted or terminated in the case of sick leave, military leave
or any other leave of absence approved by the Company or in the
case of transfers between locations of the Company and its
subsidiaries.
(b)
Notwithstanding
the provisions of Section 3(a), all of the Restricted Stock Units
shall immediately vest and become non-forfeitable upon the
occurrence of any of the following events (each, a “Vesting
Event”): (i) the Grantee’s death or becoming Disabled,
(ii) a Change in Control, or (iii) the Grantee’s retirement
after age 62.
(c)
For
purposes of this Section 3, the Grantee shall be considered
“Disabled” if the Grantee is: (i) unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months, or (ii) by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, receiving
income replacement benefits for a period of not less than three (3)
months under an accident and health plan covering employees of the
Company.
4.
Issuance of the Common Stock.
(a)
The
Company will issue to the Grantee the Common Stock underlying the
vested Restricted Stock Units on the applicable Vesting Date or, if
earlier, upon the occurrence of a Vesting Event.
(b)
Except
to the extent provided by Section 409A of the Code and permitted by
the Company, no Stock may be issued to the Grantee at a time
earlier than otherwise expressly provided in this
Agreement.
(c)
The
Company’s obligations to the Grantee with respect to the
Restricted Stock Units will be satisfied in full upon the issuance
of shares of Common Stock corresponding to such Restricted Stock
Units.
5.
Dividend, Voting and Other Rights.
(a)
The
Grantee shall have no rights of ownership in the shares of Common
Stock underlying the Restricted Stock Units and shall have no right
to dividends and no right to vote such shares until the date on
which the Restricted Stock Units are vested and a stock certificate
(or certificates) representing such shares of Common Stock is
issued to the Grantee pursuant to Section 4 above.
(b)
The
obligations of the Company under this Agreement will be merely that
of an unfunded and unsecured promise of the Company to deliver
shares of Common Stock in the future, and the rights of the Grantee
will be no greater than that of an unsecured general
creditor. No assets of the Company will be held or set
aside as security for the obligations of the Company under this
Agreement.
6.
Adjustments. The number of shares of Common
Stock issuable pursuant to the Restricted Stock Units is subject to
adjustment as provided in Section 4(c) of the Plan.
7.
Compliance with Law. The Company shall make
reasonable efforts to comply with all applicable local and United
States federal and state securities laws; provided ,
however ,
notwithstanding any other provision of this Agreement, the Company
shall not be obligated to issue any shares of Common Stock pursuant
to this Agreement if the issuance thereof would result in a
violation of any such law.
8.
Compliance with Section 409A of the Code. To the
extent applicable, it is intended that this Agreement and the Plan
comply with the provisions of Section 409A of the
Code. This Agreement and the Plan shall be administered
in a manner consistent with this intent, and any provision that
would cause this Agreement or the Plan to fail to satisfy
Section 409A of the Code shall have no force or effect until
amended to comply with Section 409A of the Code (which
amendment may be retroactive to the extent permitted by
Section 409A of the Code and may be made by the Company
without the consent of the Grantee). In particular, to
the extent that the Vesting Event (and the right to
receive
payment of the shares of Common Stock underlying the Restricted
Stock Units) occurs pursuant to Section 3(b)(iii) or pursuant to an
event that would subject the Grantee to penalties under Section
409A(a)(1) of the Code, then notwithstanding anything to the
contrary in Section 4 above, payment will be made to the
Grantee on the earlier of (a) the Grantee’s
“separation from service” with the Company (determined
in accordance with Section 409A); provided ,
however , that
if the Grantee is a “specified employee” (within the
meaning of Section 409A), the date of payment shall be made on
the date which is six (6) months after the date of the
Grantee’s separation from service with the Company or (b) the
Grantee’s death.
9.
Interpretation. Any reference in this Agreement
to Section 409A of the Code will also include the final
regulations, or any other guidance, promulgated with respect to
such Section by the U.S. Department of the Treasury or the Internal
Revenue Service.
10.
No Employment Rights. This award will not confer
upon the Grantee any right with respect to continuance of
employment by the Employer, nor will it interfere in any way with
any right of the Employer to terminate the Grantee’s
employment at any time.
11.
Taxes. Regardless of any action the Company or
the Employer takes with respect to any or all income tax, social
insurance, payroll tax, payment on account or other tax-related
withholding (“Tax-Related Items”), the Grantee
acknowledges that the ultimate liability for all Tax-Related Items
legally due by him or her is and remains the Grantee’s
responsibility and that the Company and/or the Employer (1) make no
representations or undertakings regarding the treatment of any
Tax-Related Items in connection with any aspect of the Restricted
Stock Units, including the grant or vesting of the Restricted Stock
Units, the settlement of the Restricted Stock Units in shares of
Common Stock upon vesting, the subsequent sale of any shares of
Common Stock acquired at vesting and the receipt of any dividends
or Dividend Equivalents; and (2) do not commit to structure the
terms of the grant or any aspect of the Restricted Stock Units to
reduce or eliminate the Grantee’s liability for Tax-Related
Items.
Prior
to the taxable event, the Grantee shall pay or make adequate
arrangements satisfactory to the Company and/or the Employer
to satisfy all tax withholding and payment on account
obligations of the Company and/or the Employer that arise in
connection with the Restricted Stock Units. In this
regard, if permissible under local law, the Grantee authorizes
the Company and/or the Employer, at its discretion, to satisfy
the obligations with regard to all Tax-Related Items legally
payable by the Grantee by withholding a number of shares of
Common Stock otherwise issuable to the Grantee under the
Restricted Stock Units, provided, however, that no shares of
Common Stock are withheld with a value exceeding the minimum
withholding amount (or such other amount as is required to
avoid adverse accounting implications). If the
foregoing method of withholding is prohibited or insufficient
to satisfy all Tax-Related Items legally payable by the
Grantee, then the Grantee hereby authorizes the Company and/or
the Employer to satisfy the Grantee’s obligation for
Tax-Related Items by any one or a combination of the following
methods: (i) by withholding from the Grantee’s wages or
other cash compensation paid to the Grantee by the Company
and/or the Employer; or (ii) by selling shares or arranging
for the sale of shares of Common Stock (in either case on the
Grantee’s behalf and at the Grantee’s direction
pursuant to this authorization) issued in settlement of the
Restricted Stock Units. If the obligation for
Tax-Related Items is satisfied by withholding a number of
shares of Common Stock as described herein, the Grantee will
be deemed to have been issued the full number of shares of
Common Stock under the Restricted Stock Units, notwithstanding
that a number of the shares of Common Stock is held back
solely for the purpose of paying the Tax-Related Items due as
a result of the vesting of the Restricted Stock
Units.
Finally,
the Grantee will pay to the Company or the Employer any amount
of Tax-Related Items that the Company or the Employer may be
required to withhold as a result of the
Grantee’s
participation
in the Plan or his/her acquisition of shares of Common Stock
that cannot be satisfied by the means previously
described. The Company shall not be required to
issue shares of Common Stock pursuant to this Agreement unless
and until such obligations are satisfied.
12.
Nature of Grant. In accepting the grant of
Restricted Stock Units, the Grantee acknowledges and agrees
that:
(a)
the
Plan is established voluntarily by the Company, it is discretionary
in nature and it may be modified, amended, suspended or terminated
by the Company at any time, unless otherwise provided in the Plan
and the Agreement;
(b)
the
Award is voluntary and occasional and does not create any
contractual or other right to receive future grants of Restricted
Stock Units, or benefits in lieu of Restricted Stock Units, even if
Restricted Stock Units have been granted repeatedly in the
past;
(c)
all
decisions with respect to future grants of Restricted Stock Units
or other awards, if any, will be at the sole discretion of the
Company;
(d)
the
Grantee is voluntarily participating in the Plan;
(e)
the
award of Restricted Stock Units is not part of normal or expected
compensation or salary for any purposes, including, but not limited
to, calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards,
pension or retirement or welfare benefits or similar payments and
in no event should be considered as compensation for, or relating
in any way to, past services for the Company or the
Employer;
(f)
the
award of Restricted Stock Units and the Grantee’s
participation in the Plan will not be interpreted to form an
employment contract or relationship with the Company or any of its
subsidiaries;
(g)
the
future value of the shares of Common Stock underlying the Award is
unknown and cannot be predicted with certainty;
(h)
in
consideration of the grant of the Restricted Stock Units, no claim
or entitlement to compensation or damages shall arise from
termination of the Award or diminution in value of the Award or
shares of Common Stock acquired pursuant to the Award resulting
from termination of the Grantee’s employment by the Company
or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and the Grantee irrevocably releases
the Company and the Employer from any such claim that may arise;
if, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen, then, by accepting
the Award, the Grantee will be deemed irrevocably to have waived
the Grantee’s entitlement to pursue such claim;
(i)
in
the event of termination of the Grantee’s employment (whether
or not in breach of local labor laws), the Grantee’s right to
receive the Award and vest in the Award under the Plan, if any,
will terminate effective as of the date that the Grantee is no
longer actively employed and will not be extended by any notice
period mandated under local law ( e.g ., active
employment would not include a period of “garden leave”
or similar period pursuant to local law); the Committee shall have
the exclusive discretion to determine when the Grantee is no longer
actively employed for purposes of the Grantee’s
Award;
(j)
the
Company is not providing any tax, legal or financial advice, nor is
the Company making any recommendations regarding the
Grantee’s participation in the Plan, or the Grantee’s
acquisition or sale of the underlying shares of Common Stock;
and
(k)
the
Grantee is hereby advised to consult with the Grantee’s
personal tax, legal and financial advisors regarding the
Grantee’s participation
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