WWW.EXFILE.COM, INC. -- 888-775-4789 -- HARSCO CORP. -- EXHIBIT 10(v)(ii) TO FORM 10-K


    EXHIBIT
10(v)(ii)

     

    AMENDMENT
NO. 1

    TO
THE

    HARSCO
CORPORATION

    1995
NON-EMPLOYEE DIRECTORS' STOCK PLAN

    


    Harsco Corporation hereby adopts this
Amendment No. 1 to the Harsco Corporation Non-Employee Directors’ Stock Plan (As
Amended and Restated January 27, 2004) (the “Plan”), effective as of December
31, 2008.  Words and phrases used herein with initial capital letters
that are defined in the Plan are used herein as so defined.

    


    I.

     

    The last
two sentences of Section 7(a) of the Plan are hereby amended to read as
follows:

     

    “Such
Restricted Stock Units shall be settled as promptly as practicable following the
Participant’s separation from service, but in no event more than 60 days after
such separation from service.  No acceleration of the settlement will
be permitted. ”

     

    II.

     

    Section
8(a) of the Plan is hereby amended in its entirety to read as
follows:

     

    “(a)  Elections.  Each
director who elects to receive fees in the form of Stock (the 'Stock Election')
or defer fees in the form of Deferred Stock earned during any calendar year (the
'Deferral Election', and together with the Stock Election, the 'Elections') must
file an irrevocable written Election with the Secretary of the Company no later
than December 31 of the preceding year.  A newly-appointed director
shall be eligible to file an Election with the Secretary of the Company not
later than 30 days of his or her appointment to the Board of Directors and any
such Deferral Election shall be effective only with regard to the amount of fees
earned during the calendar year following the filing of the Deferral Election as
determined pursuant to the pro-ration method permitted under Section 409A of the
Internal Revenue Code of 1986, as amended (the 'Code').   The
Elections made pursuant to this Section 8(a) shall be irrevocable with respect
to those fees to which such Elections pertain and shall also apply to fees
payable in future calendar years unless the director terminates or modifies such
Election with respect to a future calendar year by filing a new Election before
the first day of the calendar year with respect to which the Election is to
become effective.  Such new Election shall likewise continue in effect
and apply to future calendar years until similarly changed.  The
Elections must specify the following:

     

    
      	
              (i)  

            	
              A
      percentage, not to exceed an aggregate of 100% of the Participant’s fees,
      to be received in the form of Stock or deferred in the form of Deferred
      Stock under the Plan;

            


    

     

    
      	
              (ii)  

            	
              In
      the case of a Deferral Election and to the extent permitted by the Board
      according to Section 9(a), whether dividend equivalents on Deferred Stock
      credited to the Participant’s deferral account will be paid directly to
      the Participant in cash or credited to his or her deferral account in cash
      or deemed to be reinvested in additional Deferred Stock;
    and

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              (iii)  

            	
              On
      his or her Deferral Election, the Participant shall also make a payment
      election (the 'Payment Election') with respect to the deferred amounts
      subject to such Deferral Election by specifying the time period permitted
      under Section 409A of the Code during which the settlement of the Deferred
      Stock will be deferred.  A Participant's Payment Election shall
      also specify the form of payment permitted under Section 409A elected by
      the Participant with respect to the Deferred
  Stock.

            


    

     

    In the
event directors’ fees are increased during any year, a Participant’s elections
in effect for such year will apply to the amount of such increase.
”

     

    III.

     

    The last
sentence of Section 9(a) of the Plan is hereby amended in its entirety to read
as follows:

     

    “To the
extent pemitted under Section 409A of the Code, the Secretary may, in his
discretion, delay the timing of any conversion of dividend equivalents into
additional Restricted Stock Units or Deferred Stock in order that such
transactions take place at the same time as other transactions reportable under
Section 16 of the Exchange Act, to promote administrative efficiency in filing
Form 4s with the Securities and Exchange Commission.”

     

    IV.

     

    Section
10 of the Plan is hereby amended by adding the following new sentence at the end
thereof:

     

    “Notwithstanding
the foregoing, no adjustments shall be made under this Section 10: (a) with
respect to awards that are considered ‘deferred compensation’ within the meaning
of Section 409A of the Code unless such adjustments are made in compliance with
the requirements of Section 409A of the Code, and (b) with respect to awards
that are not considered ‘deferred compensation’ subject to Section 409A of the
Code to the extent that such adjustments would cause such awards to be subject
to Section 409A of the Code.”

     

    V.

    


    The Plan is hereby amended by inserting
the following new Section 14 immediately after Section 13 thereof:

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     “14.   Compliance with Section 409A of the
Code.

     

    (a) To the
extent applicable, it is intended that this Plan and any awards granted
hereunder comply with the provisions of Section 409A of the Code, so that the
income inclusion provisions of Section 409A(a)(1) of the Code do not apply to
the Participants.  This Plan and any awards granted hereunder shall be
administered in a manner consistent with this intent.  Any reference
in this Plan to Section 409A of the Code will also include any regulations or
any other formal guidance promulgated with respect to such Section by the U.S.
Department of the Treasury or the Internal Revenue Service.

     

    (b) Neither a
Participant nor any of a Participant’s creditors or beneficiaries shall have the
right to subject any deferred compensation (within the meaning of Section 409A
of the Code) payable under this Plan and awards granted hereunder to any
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment.  Except as permitted under Section 409A of
the Code, any deferred compensation (within the meaning of Section 409A of the
Code) payable to a Participant or for a Participant’s benefit under this Plan
and awards granted hereunder (i) may not be reduced by, or offset against, any
amount owing by a Participant to the Company or any of its affiliates and (ii)
may not be substituted or replaced by any amount payable by the Company or any
of its affiliates to a Participant or for a Participant’s benefit under this
Plan or otherwise.  Any Participant elections to defer the payment of
awards under the Plan shall be made in compliance with the requirements of
Section 409A of the Code.

     

    (c) For
purposes of the Plan, 'separation from service' shall mean a separation from
service (within the meaning of Section 409A(a)(2)(A)(i) of the Code and Treasury
Regulation Section 1.409A-1(h) or any successor provisions) with the Company and
any member of its controlled group.

     

    (d) If, at
the time of a Participant’s separation from service, (i) the Participant shall
be a specified employee (within the meaning of Section 409A of the Code and as
determined pursuant to procedures adopted by the Company in compliance with
Section 409A of the Code), and (ii) the Company shall make a good faith
determination that an amount payable hereunder constitutes deferred compensation
(within the meaning of Section 409A of the Code) the payment of which is
required to be delayed pursuant to the six-month delay rule set forth in Section
409A of the Code in order to avoid taxes or penalties under Section 409A of the
Code, then the Company shall not pay such amount on the otherwise scheduled
payment date but shall instead pay it on the first business day of the seventh
month following such separation from service.

     

    (e) Notwithstanding
any provision of this Plan and awards granted hereunder to the contrary, in
light of the uncertainty with respect to the proper application of Section 409A
of the Code, the Company reserves the right to make amendments to this Plan and
grants hereunder as the Company deems necessary to avoid the imposition of taxes
or penalties under Section 409A of the Code.”

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    EXECUTED effective as of December 31,
2008.

    


    


    


    
      	
              HARSCO
      CORPORATION

            
	 
      	 
      
	 
      	 
      
	
              By:

            	
               /S/
      Mark E. Kimmel

            
	 
      	
              Name:
      Mark E. Kimmel

            
	 
      	
              Title:  Senior
      Vice President

            
	 
      	
              Chief Administrative
      Officer

            
	 
      	
              General Counsel &
      Corporate Secretary