HARSCO NON-QUALIFIED RETIREMENT SAVINGS & INVESTMENT PLAN PART B – AMENDMENT AND RESTATEMENT AS OF JANUARY 1, 2009
EXHIBIT
10(aa)
HARSCO
NON-QUALIFIED
RETIREMENT
SAVINGS & INVESTMENT PLAN
PART
B – AMENDMENT AND RESTATEMENT AS OF JANUARY 1, 2009
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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Establishment
of Plan
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1
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1.1
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Purpose
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1
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1.2
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Tax/ERISA
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1
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1.3
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Effective
Date
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1
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1.4
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2009
Amendment and Restatement
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1
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ARTICLE
II
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Definitions
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2
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2.1
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Account
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2
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2.2
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Ancillary
Agreement
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2
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2.3
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Beneficiary
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2
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2.4
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Board
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2
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2.5
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Change
In Control
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2
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2.6
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Committee
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3
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2.7
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Compensation
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3
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2.8
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Deferred
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3
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2.9
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Participant
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3
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2.10
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Pension
Committee
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3
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2.11
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Post-2004
Subaccount
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3
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2.12
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Pre-2005
Subaccount
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3
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2.13
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RSIP
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3
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2.14
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Retirement
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3
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2.15
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Separation
from Service
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4
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2.16
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Valuation
Date
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4
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ARTICLE
III
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Eligibility
and Vesting
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5
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3.1
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Eligibility
to Participate in the Plan
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5
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3.2
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Participation
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5
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3.3
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Vesting
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5
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ARTICLE
IV
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Non-Qualified
Retirement Savings & Investment Plan (NQRSIP) Benefits
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6
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4.1
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NQRSIP
Benefit
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6
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4.2
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Allocation
of NQRSIP Benefit
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6
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4.3
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Valuation
of Participant’s Post-2004 Subaccount
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6
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4.4
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Crediting
Investment Returns
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6
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ARTICLE
V
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Non-Qualified
RSIP Benefit Distributions
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7
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5.1
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Payment
of Post-2004 Subaccount upon Termination, Retirement, or Change In
Control
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7
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5.2
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Payment
of Benefits to Beneficiary
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7
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ARTICLE
VI
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Administration
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8
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6.1
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Administration
of the Plan
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8
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-i-
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6.2
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Cost
of Administering the Plan
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8
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6.3
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Agents
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8
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6.4
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Indemnification
of the Committee
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8
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ARTICLE
VII
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Amendment
and Termination
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9
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7.1
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Amendment
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9
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7.2
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Termination
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9
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ARTICLE
VIII
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Miscellaneous
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10
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8.1
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No
Right of Employment
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10
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8.2
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Withholding
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10
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8.3
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Non-Assignability
of Benefits
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10
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8.4
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Unfunded
Status
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10
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8.5
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Forfeiture
on Termination For Cause
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10
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8.6
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Gender
and Number
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10
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8.7
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Controlling
Law
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10
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8.8
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Successors
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11
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8.9
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Code
Section 409A
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11
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-ii-
ARTICLE
I
Establishment of
Plan
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1.1
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Purpose. The
Harsco Non-Qualified Retirement Savings & Investment Plan (“Plan” or
“NQRSIP”) was established by Harsco Corporation (“Corporation”) to
compensate participating employees for government-imposed reductions in
benefits from and/or contributions to the tax-qualified Harsco Retirement
Savings & Investment Plan (“RSIP”) in which they
participate.
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1.2
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Tax/ERISA. The
Corporation intends that the Plan shall at all times be maintained on an
unfunded basis for federal income tax purposes under the Internal Revenue
Code of 1986, as amended (“Code”), and administered as a “top-hat” plan
exempt from the substantive requirements of the Employee Retirement Income
Security Act of 1974, as amended
(“ERISA”).
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1.3
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2009 Amendment and
Restatement. The Plan was adopted as of January 1,
2004. The Plan is hereby again amended and restated effective
as of January 1, 2009 by the adoption of Part B of the Plan, as set forth
herein. Part A of the Plan, consisting of the January 1, 2004
Plan document, applies to compensation that was Deferred during calendar
years ending prior to January 1, 2005 and which had become vested prior to
said date, in accordance with the terms of those documents in effect from
time to time prior to October 3, 2004. The provisions of this
Part B shall apply to compensation that is Deferred during calendar years
beginning on or after January 1, 2005, or that was previously Deferred but
not vested prior to said date. This Part B of the Plan is
intended to meet all of the requirements of Section 409A of the Code, so
that Participants will be eligible to defer the receipt of, and the
liability for the federal income tax with respect to, certain items of
compensation from one year to a later year in accordance with the
provisions of applicable law and the provisions of the
Plan. With respect to compensation that was deferred during the
2005, 2006, 2007 and 2008 calendar years, or that was Deferred prior to
January 1, 2005 but became vested during the period January 1, 2005
through December 31, 2008, the terms of the Plan shall be administered in
accordance with a reasonable, good faith interpretation of Code Section
409A, and such interpretation shall govern the rights of a Participant
with respect to that period of
time.
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ARTICLE
II
Definitions
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2.1
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Account. The
sum of the Corporation contributions and the investment returns thereon
allocated to each Participant under this Plan in accordance with the
provisions of Article IV. A Participant’s Account will be
divided into the following subaccounts: (a) a “Pre-2005
Subaccount” for amounts Deferred by a Participant and vested for purposes
of Code Section 409A as of December 31, 2004 (and earnings and losses
thereon), and (b) a “Post-2004 Subaccount” for amounts Deferred by a
Participant and/or vested for purposes of Code Section 409A after December
31, 2004 (and earnings and losses thereon). Amounts in the
Pre-2005 Subaccounts, which are intended to qualify for “grandfathered”
status, shall be subject to the terms and conditions specified in Part A
of the Plan as in effect on or before October 3, 2004. The
Account is not funded and is a bookkeeping record of the benefits to which
a Participant is entitled under the terms of the
Plan.
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2.2
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Ancillary
Agreement. An instrument by which special arrangements
for specific Participants are incorporated into this
Plan.
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2.3
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Beneficiary. Any
person designated by a Participant to receive benefits which may be due,
or become due, under this Plan. If a Participant made no such
designation, or if the designated person predeceases the Participant, the
Beneficiary shall be the Participant’s
estate.
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2.4
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Board. The
Board of Directors of the
Corporation.
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2.5
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Change In
Control. The first to occur of any one of the events
described below:
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(a)
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Stock
Acquisition. Any “person” [as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (“the
1934 Act”)], other than the Corporation or a corporation, a majority of
whose outstanding stock entitled to vote is owned, directly or indirectly,
by the Corporation, who is or becomes, other than by purchase from the
Corporation or such a corporation, the “beneficial owner” (as such term is
defined in Rule 13(d)-3 under the 1934 Act), directly or indirectly, of
securities of the Corporation representing 30 percent or more of the
combined voting power of the Corporation’s then outstanding voting
securities. Such a Change in Control shall be deemed to have
occurred on the first to occur of the date securities are first purchased
by a tender or exchange offer, or the date on which the Corporation first
learns of acquisition of 30 percent of such securities, or the later of
the effective date of an agreement for the merger, consolidation or other
reorganization of the Corporation or Corporation shareholder approval
thereof, as the case may be.
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(b)
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The
date that a tender or exchange offer by any Person (other than the
Corporation or Subsidiary) is first published or sent or given within the
meaning of Rule 14e-2(a) of the General Rules and Regulations under the
Exchange Act as may be amended, supplemented or superseded from time to
time, if upon consummation thereof, such Person would be the Beneficial
Owner of 30% or more of the combined voting power of the Corporation’s
outstanding voting securities.
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-2-
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(c)
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Change in
Board. During any period of two consecutive years,
individuals who at the beginning of such period were members of the Board
of Directors ceases for any reason to constitute at least a majority of
the Board of Directors, unless the election or nomination for election by
the Corporation’s shareholders of each new director was approved by a vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. Such a Change in
Board shall be deemed to have occurred on the date upon which the
requisite majority of directors fails to be elected by the shareholders of
the Corporation.
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(d)
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Other
Events. Any other event or series of events which,
notwithstanding any other provision of this definition, is determined by a
majority of the outside members of the Board of Directors of the
Corporation to constitute a Change in Control of the Corporation for
purposes of this Plan. Such a Change in Control shall be deemed
to have occurred on the date of such determination or on such other date
as such majority of outside members of the Board shall
specify. Notwithstanding the foregoing, this Section 2.5(d)
shall be interpreted in a manner consistent with Code Section 409A and
applicable provisions of the Treasury
Regulations.
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2.6
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Committee. The
Management Development and Compensation Committee of the Board or such
other committee as may be designated by the
Board.
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2.7
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Compensation. The
amount reported by the Corporation for a Participant as “wages, tips and
other compensation” on Form W-2, or any successor method of reporting
under Code Section 6041(d), plus any salary reductions pursuant to Code
Sections 125, 132(f), 402(e)(3), 402(h), 403(b), 414(h)(2) or 457, but
excluding any taxable fringe benefits such as restricted stock, moving
expenses, tuition reimbursements and imputed income from life
insurance.
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2.8
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Deferred. An
amount that is considered to be deferred within the meaning of Treasury
Regulations sections 1.409A-6(a)(2) and
1.409A-6(a)(3).
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2.9
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Participant. An
officer or other employee of the Corporation who has been approved for
participation in the Plan pursuant to Article
III.
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2.10
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Pension
Committee. The Committee appointed by the Board of
Directors or a Committee thereof to administer qualified and nonqualified
pension plans.
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2.11
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Post-2004
Subaccount. The term defined in Section
2.1.
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2.12
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Pre-2005
Subaccount. The term defined in Section
2.1.
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-3-
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2.13
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RSIP. The
relevant tax-qualified plan known as the Harsco Retirement Savings and
Investment Plan.
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2.14
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Retirement. The
later of the date of the Participant’s 65th
birthday or attainment of 5 Years of Vesting Service, determined in
accordance with the provisions of the RSIP. With respect to a
Participant with a Prior Employer Account (as such term is defined in the
RSIP) from the Maryland Slag Co. Retirement Savings Plan, the date of such
Participant’s 65th
birthday.
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2.15
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Separation from
Service. The condition that exists when an employee who
is a Participant in the Plan and the Corporation reasonably anticipate
that no further services will be performed after a certain date or that
the level of bona fide services that the employee will perform after such
date (whether as an employee or an independent contractor) would
permanently decrease to no more than 20% of the average level of bona fide
services performed (whether as an employee or an independent contractor)
over the immediately preceding 36-month period (or the full period of
services to the Corporation if the employee has been providing services to
the Corporation for less than 36 months). For purposes of this
Section 2.15, for periods during which an employee is on a paid bona fide
leave of absence and has not otherwise experienced a Separation from
Service, the employee is treated as providing bona fide services at the
level equal to the level of services that the employee would have been
required to perform to receive the compensation paid with respect to such
leave of absence. Periods during which an employee is on an
unpaid bona fide leave of absence and has not otherwise experienced a
Separation from Service are disregarded for purposes of this Section 2.15
(including for purposes of determining the applicable 36-month (or
shorter) period). For purposes of this Section 2.15, the
“Corporation” shall be considered to include all members of the controlled
group of corporations, trades or businesses which includes the
Corporation; provided, however, that in applying Code Section 414(b), the
phrase “at least 50 percent” shall be substituted for “at least 80
percent”; and in applying Code Section 414(c), the phrase “at least 50
percent” shall be used instead of the phrase “at least 80
percent.” Separation from Service shall be determined on the
basis of the modifications described in Treasury Regulation Section
1.409A-1(h)(3) (or any successor regulation)) as defined in Code Section
409A and the regulations or other guidance issued
thereunder.
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2.16
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Valuation
Date. The date on which the amount of a Participant’s
Account is valued. The Valuation Date is the last day of each
calendar quarter.
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-4-
ARTICLE
III
Eligibility and
Vesting
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3.1
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Eligibility to
Participate in the Plan. A select group of management or
highly paid employees as designated by the Committee who are subject to
government-imposed reductions in benefits from and/or contributions to the
RSIP.
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3.2
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Participation. An
eligible employee shall commence participation in the Plan upon the first
day of his or her first payroll period following the end of the calendar
quarter in which the eligible employee exceeds the limitation on
Compensation taken into account under Code Section
401(a)(17).
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3.3
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Vesting. A
Participant’s right to his or her Account under this Plan shall vest and
become nonforfeitable only if, and to the extent that, the Participant has
met the requirements for distribution due to death, Retirement,
termination of employment from the Corporation or in connection with a
Change In Control.
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-5-
ARTICLE
IV
Non-Qualified Retirement
Savings & Investment Plan (NQRSIP) Benefits
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4.1
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NQRSIP
Benefit. Due to the limitations contained in Code
Section 401(a)(17), a Participant is not able to receive Corporation
matching contributions or Corporation discretionary contributions in the
RSIP on Compensation in excess of the Code Section 401(a)(17) limit
($245,000 in 2009). To make up for this limitation, the
Corporation will contribute to this Plan an amount equal to 4% of a
Participant’s Compensation in excess of the limitation contained in Code
Section 401(a)(17) and make Corporation discretionary contributions to
this Plan in a percentage equal to the percentage of discretionary
contribution in the RSIP for the same period, if any, on the Participant’s
Compensation in excess of the Code Section 401(a)(17)
limit.
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4.2
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Allocation of NQRSIP
Benefit. As of each Valuation Date, the Corporation will
determine the amount of the contribution (Corporation’s matching
contributions and discretionary contributions) due to each Participant and
allocate that amount to each Participant’s Post-2004
Subaccount. For purposes of determining the income to be
allocated to the Post-2004 Subaccount, the amount will be treated as if it
is allocated to the same investment funds for the Corporation’s matching
contributions and discretionary contributions that the Participant
selected for the tax-qualified
RSIP.
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4.3
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Valuation of
Participant’s Post-2004 Subaccount. As of each Valuation
Date, a Participant’s Post-2004 Subaccount shall consist of the balance of
the Post-2004 Subaccount as of the immediately preceding Valuation Date,
plus the NQRSIP contribution credited for the quarter pursuant to Section
4.1 plus adjustments for changes in the market value of the Participant’s
elected investment fund, including any dividends that would have been
payable on Harsco stock, that would have been purchased by the
Corporation’s matching and/or discretionary contributions and credited to
the RSIP on behalf of the Participant, but for the Code or ERISA
limitations.
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4.4
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Crediting Investment
Returns. As of each Valuation Date, each Participant’s
Post-2004 Subaccount shall be increased or decreased, as applicable, by
the investment return since the immediately preceding Valuation
Date. Investment return shall be credited at the investment
return rate adjusted for any contributions, to be credited for such
period. Investment return for the period shall reflect the
actual investment rate earned for the deemed investment elected by the
Participant under the RSIP. Until a Participant or his or her
Beneficiary receives a distribution of his or her Post-2004 Subaccount,
the unpaid balance shall be adjusted for the investment
return.
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ARTICLE
V
Non-Qualified RSIP Benefit
Distributions
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5.1
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Payment of Post-2004
Subaccount upon Termination, Retirement, or Change In
Control. Upon the Separation from Service (subject to
paragraph 8.5) or Retirement of a Participant, or the occurrence of a
Change In Control, the Corporation shall pay to the Participant or his or
her Beneficiary a benefit equal to the balance of his or her Post-2004
Subaccount as of the Valuation Date coincident with or immediately prior
to the Participant’s Separation from Service or Retirement, or the
occurrence of a Change In Control. This payment shall be made
in a cash lump sum on the first business day of the seventh calendar month
following the calendar month in which the Participant experiences a
Separation from Service or Retirement, or the occurrence of a Change In
Control.
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5.2
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Payment of Benefits to
Beneficiary. If the Participant dies while an employee
of the Corporation or prior to receiving payment under Section 5.1, his or
her Post-2004 Subaccount balance shall be payable to his or her
Beneficiary within ninety (90) days after the date of the Participant’s
death.
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ARTICLE
VI
Administration
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6.1
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Administration of the
Plan. The Plan shall be administered by the Committee,
referred to herein as the Administrator. Members of the Committee, if
otherwise eligible, shall be eligible to participate in the Plan, but no
such member shall be entitled to make decisions solely with respect to his
or her participation. The Administrator shall be vested with
full authority to make, administer and interpret such rules and
regulations as it deems necessary to administer the Plan. Any
determination, decision or action of the Administrator in connection with
the construction, interpretation, administration or application of the
Plan shall be final, conclusive and binding upon all Participants and any
and all person claiming under or through any Participant. The
Administrator shall have the authority
to:
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(a)
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Employ
agents to perform services on behalf of the Committee and to authorize the
payment of reasonable compensation for the performance of such
services.
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(b)
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Delegate
to the Pension Committee the authority to perform administrative duties
otherwise reserved to the Administrator
herein.
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6.2
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Cost of Administering
the Plan. The Corporation shall bear all of the costs of
administration of the Plan.
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6.3
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Agents. The
Committee, from time to time, may employ an individual or individuals as
agents and delegate to them such administrative duties as it sees fit, and
may from time to time consult with counsel who may be counsel to the
Corporation.
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6.4
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Indemnification of the
Committee. The Corporation shall indemnify and hold
harmless the members of the Committee against any and all claims, loss,
damage, expense or liability arising from any action or failure to act
with respect to the Plan, except in the case of gross negligence or
willful misconduct by any such member of the
Committee.
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-8-
ARTICLE
VII
Amendment and
Termination
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7.1
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Amendment. The
Corporation, acting through the Board or a committee thereof, may at any
time amend this Plan, in whole or in part, by an instrument in writing,
executed by the Board or a committee thereof; provided, however, that no
amendment shall be made which would have the effect of decreasing any
Participant’s Account determined just prior to the
amendment. Written notice of any amendment or other action with
respect to the Plan shall be given to each
Participant.
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7.2
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Termination. The
Corporation, acting through its Board or a committee thereof, may at any
time terminate this Plan by an instrument in writing executed by the Board
or its designee. Upon termination of the Plan, the Committee
shall take those actions necessary to administer any Accounts existing
prior to the effective date of the termination; provided,
however:
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(a)
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no
such termination shall be made which would have the effect of decreasing
any Participant’s Account, as it existed as of the day before the
effective date of such termination.
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(b)
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the
Corporation, by action of its Board or a committee thereof, may elect to
accelerate all distributions at the time it elects to terminate the Plan;
provided, however, that with respect to a Participant’s Post-2004
Subaccount, distributions may be accelerated only to the extent such
acceleration is permitted under Treasury
Regulation section 1.409A-3(j)(4)(ix).
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ARTICLE
VIII
Miscellaneous
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8.1
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No Right of
Employment. Nothing in the Plan shall be deemed to grant
a Participant any rights other than those specifically outlined in the
Plan. Nothing in the Plan shall be deemed to create any right
of, or contract for, employment between a Participant and the
Corporation.
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8.2
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Withholding. The
Corporation may deduct, with respect to any payments due or benefits
accrued under this Plan, any taxes required to be withheld by Federal,
state or local governments.
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8.3
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Non-Assignability of
Benefits. Neither the Participant nor any Beneficiary
shall have the power to transfer, assign, anticipate, modify or otherwise
encumber in advance any of the payments that may become due hereunder; nor
shall any such payments be subject to attachment, garnishment or
execution, or be transferable by operation of law in event of bankruptcy,
insolvency or otherwise.
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8.4
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Unfunded
Status. Any provision for payments hereunder shall be by
means of bookkeeping entries on the books of the Corporation and shall not
create in the Participant or his or her Beneficiary any right to, or claim
against any specific assets of the Corporation, nor result in the creation
of any trust or escrow account for the Participant or
Beneficiary. A Participant or Beneficiary entitled to any
payment of benefits hereunder shall be a general creditor of the
Corporation.
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8.5
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Forfeiture on
Termination For Cause. Notwithstanding any provision to
the contrary (including the acceleration of vesting and payment provisions
relating to Change In Control), if any Participant is terminated for
cause, all benefits hereunder shall be forfeited and the Corporation shall
have no further obligation to the Participant (or his or her Beneficiary)
hereunder. For purposes of this Plan, “cause” means (i) an act
or acts of personal dishonesty taken by the Participant and intended to
result in substantial personal enrichment of the Participant at the
expense of the Corporation, (ii) repeated violations by the Participant of
the Participant’s obligations under the Participant’s employment agreement
where applicable which are demonstrably willful and deliberate on the
Participant’s part and which are not remedied in a reasonable period of
time after receipt of written notice from the Corporation or (iii) the
conviction of the Participant of a
felony.
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8.6
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Gender and
Number. As used herein the masculine pronoun shall
include the feminine and neuter genders, the singular shall include the
plural, and the plural the singular, unless the context clearly indicates
a different meaning.
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8.7
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Controlling
Law. This Plan and the respective rights and obligations
of the Corporation and the Participants and Beneficiaries, except to the
extent otherwise provided by Federal law, shall be construed under the law
of the Commonwealth of
Pennsylvania.
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-10-
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8.8
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Successors. The
provisions of this Plan shall bind and inure to the benefit of the
Corporation and its respective successors and assigns. The
terms successors as used herein shall include any corporate or other
business entity which shall, whether by merger, consolidation, purchase or
otherwise, acquire all or substantially all of the business and assets of
the Corporation.
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8.9
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Code Section
409A. To the extent applicable, it is intended that this
Plan 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 Plan shall be
administered and interpreted in a manner consistent with this
intent. If any provision of this Plan is susceptible of two
interpretations, one of which results in the compliance of the Plan 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. Notwithstanding the foregoing or any other
provision of this Plan to the contrary, neither the Corporation nor any of
its subsidiaries or affiliates shall be deemed to guarantee any particular
tax result for any Participant, spouse, or beneficiary with respect to any
payments provided hereunder.
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/S/
▇▇▇▇▇▇ ▇▇▇▇▇
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/S/
▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇
▇. ▇▇▇▇▇▇
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Vice
President, Human Resources Americas
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General
Counsel and Corporate Secretary
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12/22/08
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12/22/08
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Date
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Date
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-11-