HARSCO CORPORATION CHANGE IN CONTROL SEVERANCE AGREEMENT
EXHIBIT
10(d)
HARSCO
CORPORATION
This
AGREEMENT is by and between Harsco Corporation, a Delaware corporation (the
“Company”), and __________________ (the “Executive”), dated as of the 31st day of
December, 2008.
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(a)
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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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(b)
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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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(c)
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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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(d)
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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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(e)
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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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(f)
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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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2.
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Change in
Control. For the purpose of this Agreement, a “Change in
Control” shall mean:
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(a)
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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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(b)
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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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(c)
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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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(d)
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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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3.
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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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(a)
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Position and
Duties.
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(i)
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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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(ii)
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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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(b)
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(i)
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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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(ii)
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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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(iii)
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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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(iv)
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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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(v)
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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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(vi)
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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 respect to other key executives of the Company and its
subsidiaries.
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(a)
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Disability. If
the Company determines in good faith that the Disability of the Executive
has occurred (pursuant to the definition of “Disability” set forth below)
during the Protection Period, it may give to the Executive written notice
of its intention to terminate the Executive’s employment. In
such event, the Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the Executive
(the “Disability Effective Date”), provided that, within the 30 days after
such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this
Agreement, “Disability” means disability which, at least 26 weeks after
its commencement, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or
the Executive’s legal representative (such agreement as to acceptability
not to be withheld unreasonably).
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(b)
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Cause. During
the Protection Period, the Company may terminate the Executive’s
employment for “Cause.” For purposes of this Agreement, “Cause”
means (i) an act or acts of personal dishonesty taken by the Executive and
intended to result in substantial personal enrichment of the Executive at
the expense of the Company, (ii) repeated violations by the Executive of
the Executive’s obligations under Section 4(a) of this Agreement which are
demonstrably willful and deliberate on the Executive’s part and which are
not remedied in a reasonable period of time after receipt of written
notice from the Company or (iii) the conviction of the Executive of a
felony.
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(c)
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Good
Reason. Notwithstanding anything to the contrary
contained herein, during the Protection Period, the Executive’s employment
may be terminated by the Executive for Good Reason. For
purposes of this Agreement, “Good Reason”
means:
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(i)
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the
assignment to the Executive of any duties inconsistent in any respect with
the Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by
Section 4(a) of this Agreement, or any other action by the Company which
results in a diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the
Executive;
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(ii)
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any
failure by the Company to comply with any of the provisions of Section
4(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Executive;
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(iii)
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the
Company’s requiring the Executive to be based at any office or location
other than that described in Section 4(a)(i)(B) hereof, except for travel
reasonably required in the performance of the Executive’s
responsibilities;
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(iv)
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any
purported termination by the Company of the Executive’s employment
otherwise than as expressly permitted by this Agreement;
or
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(v)
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any
failure by the Company to comply with and satisfy Section 12(c) of this
Agreement.
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For
purposes of this Section 5(c), any good faith determination of “Good Reason”
made by the Executive shall be conclusive. Anything in this Agreement
to the contrary notwithstanding, a termination by the Executive for any reason
during the 30-day period immediately following the first anniversary of the
Effective Date shall be deemed to be a termination for Good Reason for all
purposes of this Agreement.
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(d)
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Notice of
Termination. Any termination of the Executive’s
employment by the Company for Cause or by the Executive for Good Reason
shall be communicated by Notice of Termination to the other party hereto
given in accordance with Section 13(b) of this Agreement. For
purposes of this Agreement, a “Notice of Termination” means a written
notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date (which date shall be not
more than fifteen (15) days after the giving of such
notice). The failure by the Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of the Executive
hereunder or preclude the Executive from asserting such fact or
circumstance in enforcing his rights
hereunder.
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(e)
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Date of
Termination. “Date of Termination” means the date on
which Executive incurs a “separation from service” within the meaning of
Section 409A of the Code.
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(a)
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Death. If
the Executive’s employment is terminated during the Protection Period by
reason of the Executive’s death, this Agreement shall terminate without
further obligations under this Agreement to the Executive’s
representatives, other than those obligations accrued or earned and vested
(if applicable) by the Executive as of the Date of Termination, including,
for this purpose (i) the Executive’s full Base Salary through the Date of
Termination at the rate in effect on the Date of Termination or, if
higher, at the highest rate in effect at any time from the 90-day period
preceding the Effective Date through the Date of Termination (the “Highest
Base Salary”), (ii) the product of the Annual Bonus paid to the Executive
for the last full fiscal year and a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (iii) any
compensation previously deferred by
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the
Executive (together with any accrued interest thereon) and not yet paid by
the Company and any accrued vacation pay not yet paid by the Company (such
amounts specified in clauses (i), (ii) and (iii) are hereinafter referred
to as “Accrued Obligations”). All such Accrued Obligations
shall be paid to the Executive’s estate or beneficiary, as applicable, in
a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive’s family shall be entitled to receive
Employee Benefits at least equal to the most favorable Employee Benefits
provided by the Company and any of its subsidiaries to surviving families
of executives of the Company and such subsidiaries under such Employee
Benefit Plans relating to family death benefits, if any, in accordance
with the most favorable Employee Benefit Plans of the Company and its
subsidiaries 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 on the date of the Executive’s death
with respect to other key executives of the Company and its subsidiaries
and their families.
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(b)
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Disability. If
the Executive’s employment is terminated during the Protection Period by
reason of the Executive’s Disability, this Agreement shall terminate
without further obligations to the Executive, other than those obligations
accrued or earned and vested (if applicable) by the Executive as of the
Date of Termination, including for this purpose, all Accrued
Obligations. All such Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled after the Disability
Effective Date to receive disability and other Employee Benefits at least
equal to the most favorable of those provided by the Company and its
subsidiaries to disabled executives and/or their families in accordance
with such Employee Benefit Plans relating to disability, if any, of the
Company and its subsidiaries 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 and their families.
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(c)
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Cause; Other than for
Good Reason. If the Executive’s employment shall be
terminated during the Protection Period for Cause, this Agreement shall
terminate without further obligations to the Executive, other than the
obligation to pay to the Executive the Highest Base Salary through the
Date of Termination plus the amount of any compensation previously
deferred by the Executive (together with accrued interest thereon as
provided under the terms of any agreement providing for the deferral of
such compensation). If the Executive terminates employment
during the Protection Period other than for Good Reason (including by
reason of retirement), this Agreement shall terminate without further
obligations to the Executive, other than those obligations accrued or
earned and vested (if applicable) by the Executive through the Date of
Termination, including for this purpose, the Executive’s Base Salary
through the Date of Termination at the rate in effect on the Date of
Termination plus the amount of any compensation
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previously
deferred by the Executive (together with accrued interest thereon as
provided under the terms of any agreement providing for the deferral of
such compensation). Subject to Section 7, all such amounts
under this Section 6(c) shall be paid to the Executive in a lump sum in
cash within 90 days of the Date of
Termination.
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(i)
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If,
during the Protection Period, the Company shall terminate the Executive’s
employment other than for Cause, Disability, or death or if the Executive
shall terminate his employment for Good Reason, the Company shall pay to
the Executive the aggregate of the following
amounts:
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(A)
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the
Executive’s full base salary and vacation pay accrued (for vacation not
taken) through the Date of Termination at the rate in effect at the time
of the Date of Termination plus pro-rated incentive
compensation under the Company’s annual incentive compensation plan
through the Date of Termination at the same percentage rate (i.e.,
percentage of the Executive’s previous year-end salary) applicable to the
calendar year immediately prior to the Date of Termination, plus all other
amounts to which the Executive is entitled under any compensation plan,
program, practice or policy of the Company in effect at the time such
payments are due; and
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(B)
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in
the event any compensation has been previously deferred by the Executive,
all amounts previously deferred (together with any accrued interest
thereon pursuant to the terms of any agreement providing for the deferral
of such compensation) and not yet paid by the Company;
and
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(C)
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a
lump sum severance payment in an amount equal to three times the
Executive’s Base Salary.
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Subject
to Section 7 hereof, such payment will be made in a lump sum in cash within 90
days after the Date of Termination, provided, however, that in the event
Executive’s termination of employment occurs prior to a Change in Control,
payment will be made within 90 days after the Change in Control.
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(ii)
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Notwithstanding
the provisions of Section 6(d)(i), no payments shall be made under Section
6(d)(i) if the Executive declines to sign and return the Company’s
standard release agreement (the “Release Agreement”) within the time
period that the Company determines is required under applicable law, but
in no event more than 45 days following delivery of the Release Agreement,
or revokes such Release Agreement during the waiting period required by
law, provided that the Company delivers to the Executive such Release
Agreement within seven days of the Executive’s Date of
Termination.
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7.
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Delayed Payments to
Specified Employees. Notwithstanding any provision of
this Agreement to the contrary, if the Executive is a “specified employee”
(within the meaning of Section 409A and determined pursuant to the
identification methodology selected by the Company from time to time) on
his Date of Termination and if any portion of the payments or benefits to
be received by the Executive upon separation from service (within the
meaning of Section 409A) would be considered deferred compensation (within
the meaning of Section 409A) the payment or provision of which is required
to be delayed pursuant to the six-month delay rule set forth in Section
409A in order to avoid taxes or penalties under Section 409A, then the
Company will not pay or provide the amount or benefit on the otherwise
scheduled date, but such payments or benefits will instead be accumulated
and paid or made available on the earlier of (i) the first day of the
seventh month following the date of the Executive’s Date of Termination
and (ii) the Executive’s death. Any remaining payments and
benefits due under this Agreement shall be paid or provided in accordance
with the normal payment dates specified for them
herein.
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8.
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Non-exclusivity of
Rights. Nothing in this Agreement shall prevent or limit
the Executive’s continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company or any of its subsidiaries and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights
as the Executive may have under any stock option or other agreements with
the Company or any of its subsidiaries. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of the Company or any of its
subsidiaries at or subsequent to the Date of Termination shall be payable
in accordance with such plan, policy, practice or
program.
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9.
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Full
Settlement. Not later than the Effective Date, the
Company will take appropriate steps, in form and substance satisfactory to
the Executive, to ensure the Company’s financial ability to meet its
financial obligations to the Executive under this Agreement through the
escrowing of sufficient funds with a financially sound and reputable
escrow agent, the securing of a letter of credit in favor of the Executive
from a financially sound and reputable banking or financial institution,
or other similar financial arrangement with an independent
entity. The Company’s obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. The Company agrees to pay, to the
full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of
the outcome thereof) by the Company or others of the validity or
enforceability of, or liability under, any provision of this Agreement or
any guarantee of performance thereof (including as a result of any contest
by the Executive about the amount of any payment pursuant to Section 10 of
this Agreement), plus in each case interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the
Code.
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(a)
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Anything
in this Agreement to the contrary notwithstanding, in the event it shall
be determined that any payment or distribution by the Company to or for
the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) (a
“Payment”) would be nondeductible by the Company for Federal income tax
purposes because of Section 280G of the Code, then the amounts payable or
distributable to or for the benefit of the Executive pursuant to this
Agreement (such payments or distributions pursuant to this Agreement are
hereinafter referred to as “Agreement Payments”) shall be reduced in such
a way that their aggregate Present Value shall be equal to the Reduced
Amount. The “Reduced Amount” shall be an amount expressed in
Present Value which maximizes the aggregate present value of Agreement
Payments without causing any Payment to be nondeductible by the Company
because of Section 280G of the
Code.
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(b)
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All
determinations required to be made under this Section 10 shall be made by
an independent accounting firm selected by the Company (the “Accounting
Firm”) which shall provide detailed supporting calculations both to the
Company and the Executive within 15 business days of the Date of
Termination or such earlier time as is requested by the Company and, if
requested by the Executive, an opinion that he has substantial authority
not to report any excise tax on his Federal income tax return with respect
to the Agreement Payments. Any such determination by the
Accounting Firm shall be binding upon the Company and the
Executive. The Company shall determine which and how much of
the Agreement Payments shall be eliminated or reduced consistent with the
requirements of this Section 10 and shall notify the Executive promptly of
such determination. Within five business days thereafter, the
Company shall pay to or distribute to or for the benefit of the Executive
such amounts as are then due to the Executive under this
Agreement.
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(c)
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As
a result of the uncertainty in the application of Section 280G of the Code
at the time of the initial determination by the Accounting Firm hereunder,
it is possible that Agreement Payments will have been made by the Company
which should not have been made (“Overpayment”) or that additional
Agreement Payments which will not have been made by the Company could have
been made (“Underpayment”), in each case, consistent with the calculations
required to be made hereunder. In the event that the Accounting
Firm, based upon the assertion of a deficiency by the Internal Revenue
Service against the Executive which the Accounting Firm believes has a
high probability of success determines that an Overpayment has been made,
any such Overpayment paid or distributed by the Company to or for the
benefit of the Executive shall be repaid by the Executive to the Company
together with interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code; provided, however, that
no amount shall be payable by the Executive to the Company if and to the
extent such deemed
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payment
would not either reduce the amount on which the Executive is subject to
tax under Section 1 and Section 4999 of the Code or generate a refund of
such taxes. In the event that the Accounting Firm, based upon
controlling precedent or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive together with interest
at the applicable Federal rate provided for in Section 7872(f)(2) of the
Code.
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11.
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Confidential
Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
subsidiaries, and their respective businesses, which shall have been
obtained by the Executive during the Executive’s employment by the Company
or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by the Executive or his representatives in
violation of this Agreement). After termination of the
Executive’s employment with the Company, the Executive shall not, without
the prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of
the provisions of this Section 11 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this
Agreement.
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12.
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(a)
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This
Agreement is personal to the Executive and without the prior written
consent of the Company shall not be assignable by the Executive otherwise
than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Executive’s legal representatives.
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(b)
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This
Agreement shall inure to the benefit of and be binding upon the Company
and its successors and assigns.
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(c)
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The
Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company to assume expressly and agree
to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had
taken place. As used in this Agreement, “Company” shall mean
the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or
otherwise.
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13.
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(a)
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This
Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
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(b)
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All
notices and other communications hereunder shall be in writing and shall
be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the
Executive:
__________________
__________________
__________________
If to the
Company:
Harsco
Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief
Operating Officer
or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
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(c)
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The
invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
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(d)
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The
Company may withhold from any amounts payable under this Agreement such
Federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or
regulation.
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(e)
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The
Executive’s failure to insist upon strict compliance with any provision
hereof shall not be deemed to be a waiver of such provision or any other
provision thereof.
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(f)
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This
Agreement contains the entire understanding of the Company and the
Executive with respect to the subject matter hereof and supersedes any
prior agreements relating to the subject matter hereof, including, without
limitation, the Prior Agreement. Notwithstanding the preceding
sentence, this Agreement does not supersede or override the provisions of
any stock option, employee benefit or other plan, program, policy or
practice in which Executive is a participant or under which the Executive
is a beneficiary.
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(g)
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The
Executive and the Company acknowledge that the employment of the Executive
by the Company prior to the Effective Date is “at will”, and, prior to the
Effective Date, may be terminated by either the Executive or the Company
at any time. Upon a termination of the Executive’s employment
or upon the Executive’s ceasing to be an officer of the Company, in each
case, prior to the Effective Date, there shall be no further rights under
this Agreement.
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14.
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Code Section
409A. To the extent applicable, it is intended that this
Agreement comply with the provisions of Code Section
409A. References to Code Section 409A shall include any
proposed, temporary or final regulation, or any other guidance,
promulgated with respect to such section by the U.S. Department of the
Treasury or the Internal Revenue Service. This Agreement shall
be administered and interpreted in a manner consistent with this
intent. If any provision of this Agreement is susceptible of
two interpretations, one of which results in the compliance of the
Agreement with Code Section 409A and the applicable Treasury Regulations,
and one of which does not, then the provision shall be given the
interpretation that results in compliance with Code Section 409A and the
applicable Treasury Regulations. To the extent that there is a
material risk that any payments under this Agreement may result in the
imposition of an additional tax to the Executive under Code Section 409A,
the Company will reasonably cooperate with the Executive to amend this
Agreement such that payments hereunder comply with Code Section 409A
without materially changing the economic value of this Agreement such that
payments hereunder comply with Code Section 409A without materially
changing the economic value of this Agreement to either
party.
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Notwithstanding
the foregoing or any other provision of this Agreement to the contrary,
neither the Company nor any of its subsidiaries or affiliates shall be
deemed to guarantee any particular tax result for any Executive, spouse,
or beneficiary with respect to any payments provided
hereunder.
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Executive
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| HARSCO CORPORATION | |
| Name | |
| Title | |
|
Attest:
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| A. ▇▇▇▇▇▇ ▇▇▇▇▇ | |
|
Assistant
General Counsel and Assistant Corporate
Secretary
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