EXHIBIT 10
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HARSCO CORPORATION
RESTRICTED STOCK UNITS AGREEMENT
This Agreement (the "Agreement") is made on this 25th day of January, 2005
(the "Date of Grant") by and between Harsco Corporation, a Delaware corporation
(the "Company") and _________________ (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
__________ 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 on the third
anniversary of the Date of Grant (the "Vesting Date") if the Grantee
shall have remained in the continuous employ of the Company or a
subsidiary during that three (3) year period. 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 prior to the 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 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 normal or approved early retirement.
(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 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 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.
(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 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)(ii) or Section
3(b)(iii) or pursuant to an event that does not constitute a permitted
distribution event under Section 409A(a)(2) 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 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 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.
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.
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.
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.
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 Executive
Incentive Compensation Plan (as Amended and Restated).
Date: _____________ ___, 2005 _______________________________
Grantee
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