HARSCO CORPORATION RESTRICTED STOCK UNITS AGREEMENT
EXHIBIT
10.1
HARSCO
CORPORATION
This
Agreement (the “Agreement”) is made on this ____ day of _______, 20__ (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 and in the Company’s 1995 Executive Incentive Compensation
Plan (as Amended and Restated) (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 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.
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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).
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3. |
(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 the Company or a subsidiary
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.
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(b) |
Notwithstanding
the provisions of Section 3(a), all of the Restricted Stock Units shall
immediately vest and become non-forfeitable upon the
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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.
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(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.
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4. |
Issuance
of the Common Stock.
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(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.
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(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.
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(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.
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5. |
(a) |
The
Grantee shall have no rights of ownership in the Restricted Stock Units
and shall have no right to dividends and 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.
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(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.
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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.
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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.
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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.
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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.
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10. |
No
Employment Rights. This
award will not confer upon the Grantee any right with respect to
continuance of employment by the Company, nor will it interfere in
any way
with any right of the Company to terminate the Grantee’s employment at any
time.
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11. |
Taxes.
The
Grantee will pay to the Company, on demand, any taxes the Company
reasonably determines it is required to withhold under applicable tax
laws
with respect to the Restricted Stock Units or the issuance of Common
Stock
pursuant to this award. The tax withholding obligation shall be satisfied
by the Company withholding shares of Common Stock otherwise issuable
pursuant to this award in order to satisfy the minimum tax withholding
amount permissible under the method that results in the least amount
withheld.
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12. |
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.
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13. |
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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14. |
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.
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This
Agreement is executed by the Company on the day and year first set forth
above.
HARSCO
CORPORATION
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By: | ||
Name: |
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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 Executive
Incentive Compensation Plan (as Amended and Restated).
Date: ________________, 20__ | _______________________________
«Name»
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