EXHIBIT 10
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INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is made as of the 27th day of August,
2004 by and between Harsco Corporation, a Delaware corporation (the
"Corporation"), and the individual whose name appears on the signature page
hereof (such individual being referred to herein as the "Indemnified
Representative" and, together with other persons who may execute similar
agreements, as "Indemnified Representatives").
WHEREAS, the Indemnified Representative currently is and will be in
the future serving in one or more capacities as a director, officer, employee,
or agent of the Corporation or, at the request of the Corporation, as a
director, officer, employee, agent fiduciary, or trustee of, or in a similar
capacity for, another corporation, partnership, joint venture, trust, employee
benefit plan, or other entity, and in so doing is and will be performing a
valuable service to or on behalf of the Corporation;
WHEREAS, the Board of Directors of the Corporation has determined
that, in order to attract and retain qualified individuals, the Corporation will
attempt to maintain, at its sole expense, liability insurance to protect persons
serving the Corporation and its subsidiaries from certain liabilities. Although
the furnishing of such insurance has been a customary and wide-spread practice
among United States-based corporations and other business enterprises, the
Corporation believes that, given current market conditions and trends, such
insurance may be available to it in the future only at higher premiums and with
more exclusions. At the same time, directors, officers, and other persons in
service to corporations or business enterprises are being increasingly subjected
to expensive and time-consuming litigation relating to, among other things,
matters that traditionally would have been brought only against the Corporation
or business enterprise itself;
WHEREAS, the Indemnified Representative is willing to continue to
serve and to undertake additional duties and responsibilities for and on behalf
of the Corporation on the condition that he be indemnified contractually by the
Corporation; and
WHEREAS, as an inducement to the Indemnified Representative to
continue to serve the Corporation, and in consideration for such continued
service, the Corporation has agreed to indemnify the Indemnified Representative
upon the terms set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein, and intending to be legally bound hereby, the
Corporation and the Indemnified Representative agree as follows:
1. Agreement To Serve. The Indemnified Representative agrees to
serve or continue to serve for or on behalf of the Corporation in each Official
Capacity (as hereinafter defined) held now or in the future for so long as the
Indemnified Representative is duly elected or appointed or until such time as
the Indemnified Representative tenders a resignation in writing. This Agreement
shall not be deemed an employment contract between the Corporation or any of its
subsidiaries and any Indemnified Representative who is an employee of the
Corporation or any of its subsidiaries. The Indemnified Representative
specifically acknowledges that the Indemnified Representative's employment with
the Corporation or any of its subsidiaries, if any, is at will, and that the
Indemnified Representative may be discharged at any time for any reason, with or
without cause, except as may be otherwise provided in any written employment
contract between the Indemnified Representative and the Corporation or any of
its subsidiaries, other applicable formal
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severance policies duly adopted by the board of directors of the Indemnified
Representative's employer, or, with respect to service as a Director of the
Corporation, by the Corporation's Certificate of Incorporation, By-Laws, and the
Delaware General Corporation Law. The foregoing notwithstanding, this Agreement
shall continue in force after the Indemnified Representative has ceased to serve
in any Official Capacity for or on behalf of the Corporation or any of its
subsidiaries.
2. Indemnification.
(a) Except as provided in Sections 3 and 5 hereof, the
Corporation shall indemnify the Indemnified Representative against
any Liability (as hereinafter defined) incurred by or assessed
against the Indemnified Representative in connection with any
Proceeding (as hereinafter defined) in which the Indemnified
Representative may be involved, as a party or otherwise, by reason
of the fact that the Indemnified Representative is or was serving in
any Official Capacity held now or in the future, including, without
limitation, any Liability resulting from actual or alleged breach or
neglect of duty, error, misstatement, misleading statement,
omission, negligence, act giving rise to strict or product
liability, act giving rise to liability for environmental
contamination, or other act or omission, whether occurring prior to
or after the date of this Agreement. As used in this Agreement:
(i) "Liability" means any damage, judgment,
amount paid in settlement, fine, penalty, punitive
damage, or expense of any nature (including attorneys'
fees and expenses);
(ii) "Proceeding" means any threatened,
pending, or completed action, suit, appeal, arbitration,
or other proceeding of any nature, whether civil,
criminal, administrative, or investigative, whether
formal or informal, and whether brought by or in the
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right of the Corporation, a class of its security
holders, or any other party; and
(iii) "Official Capacity" means service to
the Corporation as a director, officer, employee, or
agent or, at the request of the Corporation, as a
director, officer, employee, agent, fiduciary, or
trustee of, or in a similar capacity for, another
corporation, partnership, joint venture, trust, employee
benefit plan (including a plan qualified under the
Employee Retirement Income Security Act of 1974), or
other entity.
(b) Notwithstanding Section 2(a) hereof, except for a
Proceeding brought pursuant to Section 5(d) of this Agreement, the
Corporation shall not indemnify the Indemnified Representative under
this Agreement for any Liability incurred in a Proceeding initiated
by the Indemnified Representative unless the Proceeding is
authorized, either before or after commencement of the Proceeding,
by the majority vote of a quorum of the Board of Directors of the
Corporation. An affirmative defense or counterclaim of an
Indemnified Representative shall not be deemed to constitute a
Proceeding initiated by the Indemnified Representative.
3. Exclusions.
(a) The Corporation shall not be liable under this
Agreement to make any payment in connection with any Liability
incurred by the Indemnified Representative:
(i) to the extent payment for such Liability
is made to the Indemnified Representative under an
insurance policy obtained by the Corporation;
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(ii) to the extent payment is made to the
Indemnified Representative for such Liability by the
Corporation under its Certificate of Incorporation,
By-Laws, the Delaware General Corporation Law, or
otherwise than pursuant to this Agreement;
(iii) to the extent such Liability is
determined in a final determination pursuant to Section
5(d) hereof to be based upon or attributable to the
Indemnified Representative gaining any personal profit
to which such Indemnified Representative was not legally
entitled;
(iv) for any claim by or on behalf of the
Corporation for recovery of profits resulting from the
purchase and sale or sale and purchase by such
Indemnified Representative of equity securities of the
Corporation pursuant to Section 16(b) of the Securities
Exchange Act of 1934, as amended;
(v) for which the conduct of the Indemnified
Representative has been determined in a final
determination pursuant to Section 5(d) hereof to
constitute bad faith or active and deliberate
dishonesty, in either such case material to the cause of
action or claim at issue in the Proceeding; or
(vi) to the extent such indemnification has
been determined in a final determination pursuant to
Section 5(d) hereof to be unlawful.
(b) Any act, omission, liability, knowledge, or other
fact of or relating to any other person, including any other person
who is also an Indemnified Representative, shall not be imputed to
the Indemnified Representative for the purposes of determining the
applicability of any exclusion set forth herein.
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not, of itself,
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create a presumption that the Indemnified Representative is not
entitled to indemnification under this Agreement.
4. Advancement of Expenses. The Corporation shall pay any Liability
in the nature of an expense (including attorneys' fees and expenses) incurred in
good faith by the Indemnified Representative in advance of the final disposition
of a Proceeding within thirty (30) days of receipt of a demand for payment by
the Indemnified Representative; provided, however, that the Indemnified
Representative shall repay such amount if it shall ultimately be determined,
pursuant to Section 5(d) hereof, that the Indemnified Representative is not
entitled to be indemnified by the Corporation pursuant to this Agreement. The
financial ability of the Indemnified Representative to repay an advance shall
not be a prerequisite to the making of such advance.
5. Indemnification Procedure.
(a) The Indemnified Representative shall use his best
efforts to notify promptly the Secretary of the Corporation of the
commencement of any Proceeding or the occurrence of any event which
might give rise to a Liability under this Agreement, but the failure
to so notify the Corporation shall not relieve the Corporation of
any obligation which it may have to the Indemnified Representative
under this Agreement or otherwise.
(b) The Corporation shall be entitled, upon notice to
the Indemnified Representative, to assume the defense of any
Proceeding with counsel reasonably satisfactory to the Indemnified
Representative involved in such Proceeding or, if there be more than
one (1) Indemnified Representative involved in such Proceeding, to a
majority of the Indemnified Representatives involved in such
Proceeding. If, in accordance with the foregoing, the Corporation
defends the Proceeding, the Corporation shall not be liable for the
expenses (including
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attorneys' fees and expenses) of the Indemnified Representative
incurred in connection with the defense of such Proceeding
subsequent to the required notice, unless (i) such expenses
(including attorneys' fees) have been authorized by the Corporation
or (ii) the Corporation shall not in fact have employed counsel
reasonably satisfactory to such Indemnified Representative, or to
the majority of Indemnified Representatives if more than one (1) is
involved, to assume the defense of such Proceeding. The foregoing
notwithstanding, the Indemnified Representative may elect to retain
counsel at the Indemnified Representative's own cost and expense to
participate in the defense of such Proceeding.
(c) The Corporation shall not be required to obtain the
consent of the Indemnified Representative to the settlement of any
Proceeding which the Corporation has undertaken to defend if the
Corporation assumes full and sole responsibility for such settlement
and the settlement grants the Indemnified Representative a complete
and unqualified release in respect of the potential Liability. The
Corporation shall not be liable for any amount paid by an
Indemnified Representative in settlement of any Proceeding that is
not defended by the Corporation, unless the Corporation has
consented to such settlement, which consent shall not be
unreasonably withheld.
(d) Except as set forth herein, any dispute concerning
the right to indemnification under this Agreement and any other
dispute arising hereunder, including but not limited to matters of
validity, interpretation, application, and enforcement, shall be
determined exclusively by and through final and binding arbitration
in Camp Hill, Pennsylvania, each party hereto expressly and
conclusively waiving its or his right to proceed to a judicial
determination with respect to such matter; provided, however, that
in the event that a claim for indemnification against liabilities
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arising under the Securities Act of 1933 (the "Act") (other than the
payment by the Corporation of expenses incurred or paid by a
director, officer, or controlling person of the Corporation in the
successful defense of any action, suit, or proceeding) is asserted
by a director, officer, or controlling person in connection with
securities being registered under the Act, the Corporation will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of competent jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue. The arbitration shall be conducted in
accordance with the commercial arbitration rules then in effect of
the American Arbitration Association before a panel of three (3)
arbitrators, the first of whom shall be selected by the Corporation,
the second of whom shall be selected by the Indemnified
Representative, and the third of whom shall be selected by the other
two (2) arbitrators. If for any reason arbitration under the
arbitration rules of the American Arbitration Association cannot be
initiated, the necessary arbitrator or arbitrators shall be selected
by the presiding judge of the state court of general jurisdiction in
Cumberland County, Pennsylvania. Each arbitrator selected as
provided herein is required to be serving or to have served as a
director or an executive officer of a corporation whose shares of
common stock, during at least one year of such service, were quoted
in the NASDAQ National Market System or listed on the New York Stock
Exchange or the American Stock Exchange. The Corporation shall
reimburse the Indemnified Representative for the expenses (including
attorneys' fees) incurred in prosecuting or defending such
arbitration to the full extent of such expenses if the Indemnified
Representative is awarded 50% or more of the monetary value of his
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claim or, if not, to the extent such expenses are determined by the
arbitrators to be allocable to the Corporation. It is expressly
understood and agreed by the parties that a party may compel
arbitration pursuant to this Section 5(d) through an action for
specific performance and that any award entered by the arbitrators
may be enforced, without further evidence or proceedings, in any
court of competent jurisdiction.
(e) Upon payment under this Agreement to the Indemnified
Representative with respect to any Liability, the Corporation shall
be subrogated to the extent of such payment to all of the rights of
the Indemnified Representative to recover against any person with
respect to such Liability, and the Indemnified Representative shall
execute all documents and instruments required and shall take such
other actions as may be necessary to secure such rights, including
the execution of such documents as may be necessary for the
Corporation to bring suit to enforce such rights.
6. Contribution. If the indemnification provided for in this
Agreement is unavailable for any reason to hold harmless an Indemnified
Representative in respect of any Liability or portion thereof, the Corporation
shall contribute to such Liability or portion thereof in such proportion as is
appropriate to reflect the relative benefits received by the Corporation and the
Indemnified Representative from the transaction giving rise to the Liability.
7. Non-Exclusivity. The rights granted to the Indemnified
Representative pursuant to this Agreement shall not be deemed exclusive of any
other rights to which the Indemnified Representative may be entitled under
statute, the provisions of any certificate of incorporation, by-laws, or
agreement, a vote of stockholders or directors, or otherwise, both as to action
in an Official Capacity and in any other capacity.
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8. Reliance on Provisions. The Indemnified Representative shall be
deemed to be acting in any Official Capacity in reliance upon the rights of
indemnification provided by this Agreement. Without limiting the generality of
the foregoing, the Corporation and the Indemnified Representative acknowledge
the existence of Article III, Section 9 of the Corporation's By-Laws as restated
and adopted by the Board of Directors on March 15, 1990 and effective April 25,
1990, and confirm that the Indemnified Representative is also acting in reliance
thereon.
9. Severability and Reformation. Any provision of this Agreement
which is determined to be invalid or unenforceable in any jurisdiction or under
any circumstance shall be ineffective only to the extent of such invalidity or
unenforceability and shall be deemed reformed to the extent necessary to conform
to the applicable law of such jurisdiction and still give maximum effect to the
intent of the parties hereto. Any such determination shall not invalidate or
render unenforceable the remaining provisions hereof and shall not invalidate or
render unenforceable such provision in any other jurisdiction or under any other
circumstances.
10. Notices. Any notice, claim, request, or demand required or
permitted hereunder shall be in writing and shall be deemed given if delivered
personally or sent by telegram or by registered or certified mail, first class,
postage prepaid: (i) if to the Corporation, to Harsco Corporation, 000 Xxxxxx
Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000, Attention: Secretary, or (ii) if to
any Indemnified Representative, to the address of such Indemnified
Representative listed on the signature page hereof, or to such other address as
any party hereto shall have specified in a notice duly given in accordance with
this Section 10.
11. Amendments; Binding Effect. No amendment, modification,
termination, or cancellation of this Agreement shall be effective as to the
Indemnified
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Representative unless signed in writing by the Corporation and the Indemnified
Representative. This Agreement shall be binding upon the Corporation and its
successors and assigns and shall inure to the benefit of the Indemnified
Representative's heirs, executors, administrators, and personal representatives.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflict of laws provisions thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the day and year first set forth above.
ATTEST: (SEAL) HARSCO CORPORATION
/S/ Xxxx X. Xxxxxx /S/ Xxxxx X. Xxxxxxxx
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Xxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
General Counsel & Corporate Chairman, President and
Secretary Chief Executive Officer
WITNESS: INDEMNIFIED REPRESENTATIVE
/S/ Xxxx X. Xxxxxx /S/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
McDonough, Eddy, Xxxxxxx & Xxxxxxx, X. X.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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