EXHIBIT 10.2
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HARSCO CORPORATION
FORM OF
RESTRICTED STOCK UNITS AGREEMENT
(DIRECTORS)
This Agreement (the "Agreement") is made on this ____ day of May, ____
(the "Date of Grant") by and between Harsco Corporation, a Delaware corporation
(the "Company") and _________________, a non-employee director of the Company
(the "Grantee").
1. GRANT OF RESTRICTED STOCK UNITS. Subject to and upon the terms, conditions
and restrictions set forth in this Agreement and in the Company's 1995
Non-Employee Directors' Stock Plan (as Amended and Restated at January 27,
2004) (the "Plan"), the Company hereby grants to the Grantee as of the Date
of Grant ___ Restricted Stock Units (the "Restricted Stock Units"), which
shall become vested in accordance with Section 3 hereof. Each Restricted
Stock Unit shall represent one hypothetical 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.
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 payment 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 become vested and non-forfeitable at
the close of business on the earlier of (i) the first anniversary of
the Date of Grant or (ii) the Annual Meeting of the Company's
stockholders in the year immediately following the year of the Date of
Grant (the "Vesting Date"), if the Grantee shall have remained a
Director of the Company during that period. Any Restricted Stock Units
not vested will be forfeited, except as provided in Section 3(b)
below, if the Grantee ceases to be a director of the Company prior to
the Vesting Date.
(b) Notwithstanding the provisions of Section 3(a), all or a portion of
the Restricted Stock Units shall immediately become vested and
non-forfeitable in the following circumstances (each, a "Vesting
Event"):
(i) all of the Restricted Stock Units shall immediately become vested
and non-forfeitable upon the occurrence of any of the following
events:
(A) the Grantee's death or becoming Disabled, or
(B) the Grantee's retirement under the Company's then-applicable
mandatory retirement policy; and
(ii) a pro-rata portion of the Restricted Stock Units will become
vested and non-forfeitable if the Grantee's service as a director
terminates for any other reason, such pro rata portion to be
determined by multiplying the number of Restricted Stock Units by
a fraction, the numerator of which is the number of days from the
Date of Grant and the denominator of which is the sum of the
numerator plus the number of days until the Vesting Date.
(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, together with cash in lieu of any
fractional share, as soon as practicable following the termination of
the Grantee's service as a director; provided, however, that in no
event will the issuance of the Common Stock underlying the vested
Restricted Stock Units occur more than sixty (60) days following the
termination of the Grantee's service as a director.
(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 Restricted Stock
Units and shall have no right to vote Restricted Stock Units until the
date on which the Restricted Stock Units are transferred to the
Grantee pursuant to Section 4 above and a stock certificate (or
certificates) representing such shares of Common Stock is issued to
the Grantee.
(b) Whenever dividends are paid or distributions made with respect to the
Common Stock, the Grantee shall be entitled to dividend equivalents in
an amount equal in
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value to the amount of the dividend paid or property distributed on a
single share of Common Stock multiplied by the number of Restricted
Stock Units (including any fractional share) credited to the Grantee's
account as of the record date for such dividend or distribution.
(c) 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 10
of the Plan.
7. COMPLIANCE WITH LAW. The Company shall make reasonable efforts to comply
with all applicable 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).
9. INTERPRETATION. Any reference in this Agreement to Section 409A of the Code
will also include any proposed, temporary or 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. Except as
expressly provided in this Agreement, capitalized terms used herein will
have the meaning ascribed to such terms in the Plan.
10. NO RIGHT TO CONTINUE AS A DIRECTOR. This award will not confer upon the
Grantee any right with respect to continuance of service as a director of
the Company.
11. AMENDMENTS. Any amendment to the Plan shall be deemed to be an amendment to
this Agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of
the Grantee under this Agreement without the Grantee's consent.
12. SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof, and the remaining provisions hereof shall
continue to be valid and fully enforceable.
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13. RELATION TO PLAN. This Agreement is subject to the terms and conditions of
the Plan. In the event of any inconsistency between the provisions of this
Agreement and the Plan, the Plan shall govern. The Board acting pursuant to
the Plan, as constituted from time to time, shall, except as expressly
provided otherwise herein, have the right to determine any questions which
arise in connection with the grant of the Restricted Stock Units.
This Agreement is executed by the Company on the day and year first set
forth above.
HARSCO CORPORATION
By: ______________________
Name:
Title:
The undersigned hereby acknowledges receipt of an executed original of this
Agreement and accepts the award of Restricted Stock Units granted hereunder on
the terms and conditions set forth herein and in the Company's 1995 Non-Employee
Directors' Stock Plan (as Amended and Restated at January 27, 2004).
Date: _____________ ___, ____ ______________________
Grantee
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