UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

SCHEDULE 14A

INFORMATION REQUIRED IN PROXY STATEMENT

SCHEDULE 14A INFORMATION

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO.           l           )

Filed by the Registrant þ
Filed by a Party other than the Registrant o

Check the appropriate box:

o		Preliminary Proxy Statement
o		Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ		Definitive Proxy Statement
o		Definitive Additional Materials
o		Soliciting Material Pursuant to Section 240.14a-12.

Harsco Corporation

  (Name of Registrant as Specified In Its Charter)

  (Name of Person(s) Filing Proxy Statement, if other than Registrant)

Payment of Filing Fee (Check the appropriate box):

þ		No fee required.
o		Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

(1)

Title of each class of securities to which transaction applies:

(2)

Aggregate number of securities to which transaction applies:

(3)

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined):

(4)

Proposed maximum aggregate value of transaction:

(5)

Total fee paid:

o		Fee paid previously with preliminary materials.
o		Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

(1)

Amount Previously Paid:

(2)

Form, Schedule or Registration Statement No.:

(3)

Filing Party:

(4)

Date Filed:

 

Notice of
2009 Annual
Meeting and Proxy
Statement

 

Harsco Corporation

 

Harsco Corporation

350 Poplar Church Road

Camp Hill, PA 17011 USA

 

Telephone: 717.763.7064

Fax: 717.763.6424

www.harsco.com

 

 

March 26, 2009

 

To Our Stockholders:

 

You are cordially invited to attend the 2009 Annual Meeting of Stockholders of your Company, which will be held on Tuesday, April 28, 2009, beginning at 10:00 a.m. at the Radisson Penn Harris Hotel and Convention Center, Camp Hill, Pennsylvania.

 

Information about the Annual Meeting, including a listing and discussion of the various matters on which you, as our stockholders, will act, may be found in the formal Notice of Annual Meeting of Stockholders and Proxy Statement included with this mailing. We look forward to greeting as many of our stockholders as possible.

 

The Company is providing you with the opportunity to vote your shares by calling a toll-free number, by mailing the enclosed Proxy Card or via the Internet as explained in the instructions on your Proxy Card.

 

Whether you plan to attend the Annual Meeting or not, we urge you to fill in, sign, date and return the enclosed Proxy Card in the postage-paid envelope provided, or vote by telephone or via the Internet, in order that as many shares as possible may be represented at the Annual Meeting. The vote of every stockholder is important and your cooperation in returning your executed Proxy Card promptly will be appreciated.

 

Sincerely,

 

 

Salvatore D. Fazzolari

Chairman and Chief Executive Officer

 

This document is intended to be mailed to stockholders on or about March 26, 2009.

 

TABLE OF CONTENTS

 

HARSCO CORPORATION

350 Poplar Church Road

Camp Hill, Pennsylvania 17011 USA

 

 

The Annual Meeting of Stockholders of Harsco Corporation will be held on Tuesday, April 28, 2009, at 10:00 a.m. at the Radisson Penn Harris Hotel and Convention Center, Camp Hill, Pennsylvania to consider and act upon the following matters:

 

 

G. D. H. Butler,
K. G. Eddy,
S. D. Fazzolari,
S. E. Graham,
T. D. Growcock,
H. W. Knueppel,
D. H. Pierce,
J. I. Scheiner,
A. J. Sordoni, and
R. C. Wilburn;

 

 

The Board of Directors has fixed the close of business on March 3, 2009 as the record date for the determination of stockholders who are entitled to notice of, and to vote at, the Annual Meeting and at any adjournments thereof. Proxies will be accepted continuously from the time of mailing until the closing of the polls at the Annual Meeting.

 

Stockholders who do not expect to attend the Annual Meeting in person are requested to fill in, sign, date and return the enclosed Proxy Card in the envelope provided, or vote by telephone or via the Internet, as explained in the instructions on your Proxy Card.

 

By Order of the Board of Directors,

 

Mark E. Kimmel

Senior Vice President, Chief Administrative Officer,

General Counsel and Corporate Secretary

March 26, 2009

PROXY STATEMENT

 

This Proxy Statement has been prepared in connection with the solicitation by the Board of Directors of Harsco Corporation, a Delaware corporation (the “Company”), of proxies in the accompanying form to be used at our Annual Meeting of Stockholders, to be held on April 28, 2009, or at any adjournment of the Annual Meeting.

 

The following information relates to the Annual Meeting and the voting of your shares at the meeting:

 

 

To obtain directions to attend the meeting and vote in person, please contact Kenneth D. Julian, Senior Director — Corporate Communications, by telephone at (717) 730-3683 or by e-mail at kjulian@harsco.com.

 

Information contained on our website is not incorporated by reference into this Proxy Statement, and you should not consider information contained on our website as part of this Proxy Statement. Copies of our corporate governance principles, code of business conduct and charters of the Board’s committees are available in print to any stockholder who requests such copies from us.

 

The Notice of 2009 Annual Meeting and Proxy Statement and our 2008 Annual Report are available free of charge at http://bnymellon.mobular.net/bnymellon/hsc.

 

All shares of common stock entitled to vote at the Annual Meeting are of one class, with equal voting rights. Each share of common stock held by a stockholder is entitled to cast one vote on each matter voted on at the Annual Meeting. In order for the Annual Meeting to be valid and the actions taken binding, a quorum of stockholders must be present at the meeting, either in person or

by proxy. A quorum is a majority of the issued and outstanding shares of common stock as of the Record Date. Assuming that a quorum is present, the affirmative vote by the holders of a plurality of the votes cast at the Annual Meeting will be required to act on the election of directors, and the affirmative vote of the holders of at least a majority of the outstanding common stock present in person or by proxy and entitled to vote on matters at the Annual Meeting will be required for reapproval of the material terms for performance-based awards for Section 162(m) purposes under the Amended and Restated 1995 Executive Incentive Compensation Plan, as amended to date (the “1995 Incentive Plan”) and ratification of PricewaterhouseCoopers LLP as independent auditors for the current fiscal year. The vote required to act on all other matters to come before the Annual Meeting will be in accordance with the voting requirements established by our Restated Certificate of Incorporation and By-Laws, each as amended to date.

 

The shares of common stock represented by each properly submitted proxy received by the Board of Directors will be voted as follows at the Annual Meeting:

 

If instructions are provided, in accordance with such instructions, or

 

If no instructions are provided, (1) FOR the election as Directors of the ten nominees of the Board of Directors, (2) FOR the reapproval of the material terms for performance-based awards for Section 162(m) purposes under the Amended and Restated 1995 Executive Incentive Compensation Plan, as amended to date, (3) FOR the ratification of the appointment of PricewaterhouseCoopers LLP as independent auditors for the current fiscal year, and (4) in accordance with the best judgment of the named proxies on any other matters properly brought before the Annual Meeting

 

Any proxy granted pursuant to this solicitation or otherwise, unless coupled with an interest, may be revoked by the person granting the proxy at any time before it is voted at the Annual Meeting. Proxies may be revoked by (i) delivering to the Secretary of the Company a written notice of revocation bearing a date later than that of the proxy, (ii) duly executing and delivering a later dated written proxy relating to the same shares, or (iii) attending the Annual Meeting and voting in person. If you hold your shares through a bank, broker or other nominee holder, only that bank, broker or other nominee holder can revoke your proxy on your behalf.

 

In certain circumstances, a stockholder will be considered to be present at the Annual Meeting for quorum purposes but will not be deemed to have cast a vote on a matter. That occurs when a stockholder is present but specifically withholds a vote or abstains from voting on a matter, or when shares are represented at the Annual Meeting by a proxy conferring authority to vote only on certain matters (“broker non-votes”). In accordance with Delaware law, votes withheld and broker non-votes will not be treated as votes cast with respect to the election of directors, and therefore will not affect the outcome of director elections. With respect to the ratification of auditors and confirmation of the material terms for performance-based awards under the 1995 Incentive Plan, abstentions will be treated as negative votes and broker non-votes will not be counted in determining the outcome.

 

The Board of Directors knows of no other business to come before the Annual Meeting. However, if any other matters are properly presented at the Annual Meeting, or any adjournment of the Annual Meeting, the persons voting the proxies will vote them in accordance with their best judgment.

 

We have a long-standing commitment to good corporate governance practices. These practices come in many different forms and apply at all levels of our organization. They provide the Board of Directors and our senior management with a framework that defines responsibilities, sets high standards of professional and personal conduct and promotes compliance with our various financial, ethical, legal and other obligations and responsibilities.

 

The Board has adopted corporate governance principles that, along with the charters of the Board committees, provide the framework for our Board of Directors’ operation and governance. The Board’s Nominating and Corporate Governance Committee is responsible for overseeing and reviewing our corporate governance principles at least annually and recommending any proposed changes to the Board for approval. The corporate governance principles are available on our website at www.harsco.com in the Corporate Governance section.

 

We have adopted a code of business conduct applicable to our employees, officers and directors worldwide. The code of business conduct is issued in booklet form and an online training program facilitates new employee orientation and individual refresher training. Our code of business conduct is produced in over 20 languages. The code of business conduct, including any amendments thereto or waivers thereof, can be viewed at the Corporate Governance section of our website at www.harsco.com.

 

The Board of Directors has a formal process for stockholders and interested parties to communicate directly with the Chairman and CEO, lead independent director, the non-management directors or with any individual member of the Board of Directors. Stockholders and interested parties may contact any member of the Board, including the lead independent director, Dr. Robert Wilburn, and the Chairman and CEO, by writing to the specific Board member in care of our Corporate Secretary at our Corporate Headquarters (350 Poplar Church Road, Camp Hill, PA 17011). Our Corporate Secretary will forward any such correspondence to the applicable Board member; provided, however, that any such correspondence that is considered by our Corporate Secretary to be improper for submission to the intended recipients will not be provided to such Directors. In addition, Board members, including the lead independent director and the Chairman and CEO, can be contacted by e-mail at BoardofDirectors@harsco.com.

 

The following standards, which are also posted to the Corporate Governance section of our website at www.harsco.com, have been applied by the Board of Directors in determining whether individual directors qualify as “independent” under the rules of the NYSE Euronext. The Board has affirmatively determined that the following eight Directors who are standing for reelection are independent: Messrs. Graham, Growcock, Knueppel, Pierce, Scheiner, Sordoni, and Wilburn and Ms. Eddy. References to us include our consolidated subsidiaries.

 

 

 

 

 

 

 

 

Independent Directors regularly meet in executive sessions without management. Our named lead director, Dr. Wilburn, who is a non-management director, presides over each session of the independent Directors. During the 2008 fiscal year, the independent Directors held three meetings.

 

It is our policy to request that all Board members attend the Annual Meeting of Stockholders. However, we also recognize that personal attendance by all Directors is not always possible. The ten individuals who were standing for election as Directors in 2008 did attend the 2008 Annual Meeting of Stockholders.

 

Information regarding the current structure of our Board of Directors:

 

Current size:		12 members (only 10 will stand for reelection)
Size of Board of Directors authorized in the By-Laws:		Not less than five nor more than 12
Number of Independent Directors:		Ten members (only eight of such members will stand for reelection)
Size of Board of Directors established by:		Board of Directors
Lead Director:		R. C. Wilburn

 

The Board of Directors held seven meetings during the fiscal year ended December 31, 2008. All Directors who served during the fiscal year ended December 31, 2008 attended at least 98.7% of the total Board meetings and meetings of the committee on which they served, and the average attendance by such Directors at all Board and committee meetings was 99.35%. The independent Directors held three meetings during 2008. We have standing Audit, Executive, Management Development and Compensation, and Nominating and Corporate Governance Committees.

 

 

 

 

The following performance graph compares the yearly percentage change in the cumulative total stockholder return (assuming the reinvestment of dividends) on our common stock against the cumulative total return of the Standard & Poor’s MidCap 400 Index and the Dow Jones Industrial-Diversified Index for the past five years. The graph assumes an initial investment of $100 on December 31, 2003 in our common stock or in the underlying securities which comprise each of those market indices. The information contained in the graph is not necessarily indicative of our future performance.

 

COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN*

 

Among Harsco Corporation, The S&P MidCap 400 Index
And The Dow Jones US Diversified Industrials Index

 

 

 

Copyright^© 2009 S&P, a division of The McGraw-Hill Companies Inc. All rights reserved.
Copyright^© 2009 Dow Jones & Co. All rights reserved.

 

 

The Nominating Committee of the Board of Directors is responsible for overseeing the selection of qualified candidates to serve as members of the Board of Directors and guiding our corporate governance philosophy and practices. The Nominating Committee is composed of five directors, each of whom is “independent” under the rules of the NYSE Euronext. The Nominating Committee operates according to a charter that complies with the guidelines established by the NYSE Euronext.

 

The Nominating Committee has not adopted formal procedures in selecting individuals to serve as members of the Board of Directors. Instead, it utilizes general guidelines that allow it to adjust the process to best satisfy the objectives established for any director search. The first step in the general process is to identify the type of candidate the Nominating Committee may desire for a particular opening. This may involve identifying someone with a specific background, skill set or set of experiences. Once identified, the Nominating Committee next determines the best method of finding a candidate who satisfies the specified criteria. The Nominating Committee may consider candidates recommended by management, by other members of the Nominating Committee or the Board of Directors, by stockholders, or it may engage a third party to conduct a search for possible candidates. The Nominating Committee will consider all nominees in the same manner regardless of the source of the recommendation of such nominee. The Nominating Committee will consider recommendations for director candidates from stockholders if such recommendations are in writing and set forth the following information:

 

 

 

This information must be submitted as provided under the heading “STOCKHOLDER PROPOSALS AND NOMINATIONS FOR PRESENTATION AT 2010 ANNUAL MEETING OF STOCKHOLDERS.”

 

There have been no material changes to the procedures relating to stockholder nominations during 2008. The Nominating Committee believes that these procedural requirements are intended solely to ensure that it has a sufficient basis on which to assess potential candidates and are not intended to discourage or interfere with appropriate stockholder nominations. The Nominating Committee does not believe that any such requirements subject any stockholder or stockholder nominee to any unreasonable burden. The Nominating Committee and the Board reserve the right to change the above procedural requirements from time to time and/or waive some or all of the foregoing requirements with respect to certain nominees, but any such waiver shall not preclude the Nominating Committee from insisting upon compliance with any and all of the above requirements by any other recommending stockholder or proposed nominees.

 

Once candidates are identified, the Nominating Committee conducts an evaluation of the candidate. The evaluation generally includes interviews and background and reference checks. There is no difference in the evaluation process of a candidate recommended by a stockholder as compared to the evaluation process of a candidate identified by any of the other means described above. While the Nominating Committee has not established minimum criteria for a candidate, it has established important factors to consider in evaluating a candidate. These factors include: strength of character, mature judgment, business experience, availability, attendance, career specialization, relevant technical skills, diversity and the extent to which the candidate would fill a present need on the Board of Directors.

 

If the Nominating Committee determines that an individual should be nominated as a candidate, the individual’s nomination is then recommended to the Board of Directors, who may in turn conduct its own review to the extent it deems appropriate. When the Board of Directors has agreed upon a candidate to be nominated at an Annual Meeting of Stockholders, that candidate is then recommended to the stockholders for election at an Annual Meeting of Stockholders.

 

All except two of our current directors are standing for reelection. Mr. Jasinowski has reached the Board’s mandatory retirement age and Ms. Scanlan has decided, for personal reasons, not to run for reelection to the Board. Each of the directors standing for reelection has been recommended by the Nominating Committee to the Board of Directors for election as our directors at the 2009 Annual Meeting of Stockholders and the Board has approved the recommendation. We engaged a third party search firm, RSR Partners, to assist with the selection of director candidates for the 2009 Annual Meeting of Stockholders. Fees paid to RSR Partners in connection with director searches totaled $198,000, of which $85,000 related to director searches conducted in 2008. During 2008, we received no recommendations for directors from any stockholders.

 

The first proposal to be voted on at the Annual Meeting is the election of the following ten Directors, each of whom is recommended by the Board of Directors. Biographical information about each of these nominees is included below.

 

The Board of Directors recommends that stockholders vote “FOR” the election of each of the following nominees:

 

The information set forth below states the name of each nominee for Director, his or her age (as of March 3, 2009), a listing of present and recent employment positions, the year in which he or she first became a Director of the Company, other directorships held and the committees of the Board on which the individual serves.

 

 

The general policy of our Board is that compensation for non-employee Directors should be a mix of cash and equity-based compensation. Our Compensation Committee has the primary responsibility to review and consider any revisions to Director compensation. As part of this responsibility, the Committee annually reviews market data regarding comparable director compensation rates. This data is prepared by management utilizing several broad board compensation

studies completed within one year of the Board’s review. Annual compensation for non-employee Directors for 2008 was comprised of the following components: cash compensation, consisting of an annual retainer; meeting and committee fees; and equity compensation, consisting of restricted stock unit awards. The current compensation amounts for non-employee directors, effective for fiscal year 2009, are as follows:

 

 

 

The table below details the compensation earned by our non-employee Directors in 2008.

 

 

 

The following table sets forth, as of March 3, 2009, information with respect to the beneficial ownership of our outstanding voting securities, stock options and other stock equivalents by:

 

(a) Our Chief Executive Officer, Chief Financial Officer and the other three executive officers named in the 2008 Summary Compensation Table, who we refer to collectively as our named executive officers,

 

(b) each Director,

(c) all Directors and executive officers as a group, and

 

(d) certain beneficial owners holding more than 5% of the common stock.

 

All of our outstanding voting securities are common stock.

 

 

 

Except as otherwise stated, each individual has sole voting and investment power over the shares set forth opposite his or her name. None of the Directors and executive officers individually beneficially owned more than 1% of our common stock, and our Directors and executive officers as a group beneficially owned approximately 0.81% of our outstanding common stock. The mailing address for our Directors and executive officers is c/o Harsco Corporation Corporate Secretary, 350 Poplar Church Road, Camp Hill, PA 17011.

 

The Audit Committee of the Board of Directors (the “Audit Committee”) is composed of six Directors, each of whom is considered independent under the rules of the NYSE Euronext and the Securities and Exchange Commission (“SEC”). The Audit Committee, has, as part of its membership, an individual who satisfies the definition of a “financial expert,” as promulgated by the SEC. Ms. Kathy Eddy, a certified public accountant and former Chairman of the American Institute of Certified Public Accountants, has been a member of the Audit Committee since September 28, 2004 and serves as the Audit Committee’s “financial expert.”

 

The Audit Committee operates pursuant to a written charter which was adopted in 1992 and which was most recently amended in February of 2008. A copy of the Audit Committee Charter can be viewed at the Corporate Governance section of our website at www.harsco.com.

 

The Audit Committee has adopted a policy for pre-approval of audit, non-audit and tax services by the independent auditors. The Audit Committee may pre-approve services, such as the annual audit fee and statutory audits. The services to be provided are to be reviewed with the Audit Committee and approval is given for a specific dollar amount and for a period of not greater than 12 months. Services that are not pre-approved in this manner must be pre-approved on a case-by-case basis throughout the year. Additionally, if the pre-approved fee is to be exceeded, approval of the Audit Committee must be obtained. In making its decision regarding the approval of services, the Audit Committee will consider whether such services are consistent with the SEC’s

rules on auditor independence, whether the independent auditor is best positioned to provide such services and whether the services might enhance our ability to manage or control risk or improve audit quality. No services were provided during the last two fiscal years pursuant to the de minimis safe harbor exception from the pre-approval requirements.

 

The Audit Committee reports to and acts on behalf of the Board of Directors by monitoring our financial reporting processes and system of internal controls, and monitoring our internal auditors and overseeing the independence and performance of the independent auditors. In carrying out these responsibilities, the Audit Committee discussed with our internal auditors and independent auditors the overall scope and plans for their respective audits of our financial statements. The Audit Committee also meets with members of management, our independent auditors and our internal auditors on a regular basis or as may otherwise be needed. The Audit Committee Chairman or her designee meets with management and with the independent auditors each quarter to review and discuss our Quarterly Report on Form 10-Q or Annual Report on Form 10-K prior to its filing with the SEC.

 

While the Audit Committee and Board of Directors monitor our financial record keeping and controls, it is our management that is ultimately responsible for our financial reporting process, including our system of internal controls, disclosure control procedures and the preparation of the financial statements. The independent auditors support the financial reporting process by performing an audit of our financial statements and issuing a report thereon.

 

The Audit Committee has reviewed and discussed with management and the independent auditors the audited consolidated financial statements for the year ended December 31, 2008 and related periods. These discussions focused on the quality, not just the acceptability, of the accounting principles used by us, key accounting policies followed in the preparation of the financial statements and the reasonableness of significant judgments made by management in the preparation of the financial statements and alternatives that may be available.

 

In addition, the Audit Committee has discussed with the independent auditors the matters required to be discussed pursuant to Statement on Auditing Standards No. 61, as amended (AICPA, Professional Standard, Vol. 1. AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T, including the quality of our accounting principles, the reasonableness of significant judgments and the clarity of disclosures in the financial statements. The Audit Committee has also received the written disclosures and the letter from the independent auditors required by applicable requirements of the Public Company Accounting Oversight Board regarding the independent auditors’ communications with the audit committee concerning independence, and has discussed with the independent auditors the independent auditors’ independence.

 

Based on the review and discussions referred to above, the Audit Committee’s review of the representations of management and the report of the independent auditors, the Audit Committee recommended to our Board of Directors, and our Board of Directors approved, that our audited financial statements be included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008 for filing with the SEC.

 

SUBMITTED BY THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS:

 

     K. G. Eddy, Chairman

     D. H. Pierce

     C. F. Scanlan

     J. I. Scheiner

     J. J. Jasinowski

     S E. Graham

 

The following table sets forth the amount of audit fees, audit-related fees, tax fees and all other fees billed or expected to be billed by PricewaterhouseCoopers LLP, our principal auditor for the fiscal years ended December 31, 2008 and December 31, 2007.

 

 

 

The Audit Committee has considered the possible effect of non-audit services on the auditors’ independence and pre-approved the type of non-audit services that were rendered.

 

In 2004, our stockholders approved the amendment and restatement of the 1995 Incentive Plan to, among other things, approve the material terms for performance-based awards for purposes of compliance with Section 162(m) of the Internal Revenue Code. These material terms include the employees eligible to receive compensation under the 1995 Incentive Plan, a description of the business criteria on which performance-based compensation will be based and the maximum amount of compensation that could be paid to any employee under the 1995 Incentive Plan. You are being asked to reapprove these material terms in order to preserve the Company’s ability to receive a federal income tax deduction for performance-based payments under the 1995 Incentive Plan to certain executive officers named in the 2008 Summary Compensation Table and other covered employees (which we refer to as the covered employees). We are not seeking to increase the amount of available shares or to adjust any of the plan or individual award limits under the 1995 Incentive Plan.

 

Under Section 162(m) of the Internal Revenue Code and applicable regulations, we must seek your approval at five-year intervals to preserve the Company’s ability to receive a federal income tax deduction. If stockholders fail to approve the proposal, the company generally will still be able to make awards of, among other things, stock options, stock appreciation rights, restricted stock and deferred stock under the 1995 Incentive Plan, but we may be limited in our ability to grant certain performance-based awards under the 1995 Incentive Plan for purposes of Section 162(m). The Board of Directors recommends that you vote to reapprove the material terms for performance-based awards for purposes of Section 162(m) under the 1995 Incentive Plan, a copy of which is attached as Appendix A to this Proxy Statement. Although the 1995 Incentive Plan was recently amended in December 2008 to ensure that it remained in compliance with Section 409A of the

Internal Revenue Code, there has been no other change made to the plan since 2004, and we are not asking you to approve any amendments to the 1995 Incentive Plan.

 

The following description of the material terms for performance-based awards for purposes of Section 162(m) under the 1995 Incentive Plan, and of the 1995 Incentive Plan itself, is qualified in its entirety by the provisions of the 1995 Incentive Plan.

 

The 1995 Incentive Plan is the Company’s only plan for grants of equity awards to employees. It is intended to provide a means to attract, retain and reward executive officers and other key employees, to link compensation to measures of the Company’s performance by providing for incentive awards to be settled in cash and/or stock, and to promote the creation of stockholder value.

 

For purposes of Section 162(m), we are seeking reapproval of the material terms for performance-based awards, including the general business criteria that may be used to set performance objectives for awards, including annual incentive awards, intended to qualify under Section 162(m). As discussed in the Compensation Discussion and Analysis, we generally seek to preserve our ability to claim tax deductions for compensation paid to executives. Stockholder approval of the general business criteria, without specific targeted levels of performance, and of the other material terms for performance-based awards will permit qualification of awards for full tax deductibility under Section 162(m) until 2014. Stockholder approval of the performance goals inherent in stock options and stock appreciation rights (increases in the market price of stock from the date of grant) is not subject to approval under Section 162(m).

 

Eligibility for Performance-Based Awards

 

Executive officers and other key employees of the Company and its subsidiaries, including any director or officer who is also such an employee, are eligible to be granted performance-based awards under the 1995 Incentive Plan. At present, approximately 45 executive officers would be considered to be eligible for performance-based awards under the 1995 Incentive Plan. In addition, the Board may, in its discretion, grant performance-based awards to key employees, other than officers.

 

Business Criteria Used for Specifying Performance Goals

 

Under the 1995 Incentive Plan, if the Committee intends that an annual incentive award or restricted stock, deferred stock or stock granted as a bonus will qualify as “performance-based” compensation under Section 162(m), it will base the performance objective on achievement of a targeted level of performance with respect to the following business criteria:

 

 

The Committee may specify other business criteria for participants other than named executive officers. In addition, the Committee may exercise negative discretion to reduce the amount of an award to a named executive officer that otherwise has been earned based on performance with

respect to one of the specified business criteria, and the Committee may take into account other measures of performance in exercising this discretion.

 

As discussed above, the Company generally intends that options, stock appreciation rights, or SARs, performance-based restricted stock, deferred stock and stock granted as a bonus, and annual incentive awards under the 1995 Incentive Plan qualify as “performance-based compensation,” so that such awards will not be subject to the $1 million deductibility cap of Code Section 162(m). A number of requirements must be met in order for particular compensation to so qualify, however, there can be no assurance that such compensation under the 1995 Incentive Plan will be fully deductible under all circumstances. In addition, other awards under the 1995 Incentive Plan, including restricted stock, deferred stock or bonus stock not subject to performance conditions, will not so qualify, so that compensation paid to persons who are covered employees in connection with such awards, to the extent such compensation and other compensation subject to Section 162(m)’s deductibility cap in a given year exceeds $1 million, will not be tax deductible for federal income tax purposes.

 

Maximum Compensation Under Performance-Based Awards

 

During any calendar year, no participant may be granted options, SARs, restricted stock, deferred stock, and stock as a bonus or in lieu of other awards with respect to more than 150,000 shares under the 1995 Incentive Plan. If a potential grant is authorized subject to performance conditions, this limit will apply in the year of the authorization rather than in the year of any resulting grant. The maximum value of any cash-denominated annual incentive award that may be earned by satisfaction of performance conditions in any calendar year may not exceed $2,000,000 under the 1995 Incentive Plan.

 

Summary of Other Terms of the 1995 Incentive Plan

 

The summary below is intended to provide context for the material terms for performance-based awards that stockholders are being asked to reapprove for purposes of Section 162(m). The terms of the 1995 Incentive Plan provide for grants of a range of awards:

 

 

Performance conditions can be applied to any award, including restricted stock, deferred stock, or a Company commitment to grant bonus shares.

 

Under the 1995 Incentive Plan, the number of shares of common stock authorized for issuance is 8,000,000 shares. As of December 31, 2008, 5,707,604 shares of our common stock, par value $1.25 per share, have been issued and 2,292,396 shares remain available for issuance under the 1995 Incentive Plan. The number of authorized shares may be adjusted in the case of a stock split, acquisition or similar event described in Section 4(c) of the 1995 Incentive Plan. Shares subject to a forfeited or expired award or to an award that is settled in cash or otherwise terminated without issuance of shares to the participant again become available for grants under the 1995 Incentive

Plan, but shares surrendered to or withheld by the Company to cover the exercise price of an option or to satisfy withholding tax obligations are not added back to the pool of available shares. Shares issued under the 1995 Incentive Plan may be either newly issued shares or treasury shares. On March 17, 2009, the last reported sale price of shares of the Company’s common stock in New York Stock Exchange composite transactions was $21.12 per share.

 

The Committee has the sole discretion to administer the 1995 Incentive Plan, to grant awards under the 1995 Incentive Plan and to determine the terms, timing, transferability and method of exercise of awards, as applicable.

 

The Committee is authorized to grant incentive stock options, or ISOs, and nonqualified stock options, and SARs entitling the participant to receive the excess of the fair market value of a share on the date of exercise over the grant price of the SAR. The exercise price per share subject to an option and the grant price of an SAR is determined by the Committee, but must not be less than the fair market value of a share on the date of grant. The maximum term of each option or SAR, the times at which each option or SAR will be exercisable, and provisions requiring forfeiture of unexercised options at or following termination of employment is fixed by the Committee, except no option or SAR may have a term exceeding ten years. Options may be exercised by payment of the exercise price in cash, shares, outstanding awards, or other property, as the Company may determine from time to time, and methods of exercise and settlement and other terms of the SARs are determined by the Committee. SARs granted under the 1995 Incentive Plan may include “limited SARs” exercisable for a stated period of time following a “change in control” of the Company.

 

The Committee is authorized to grant restricted stock and deferred stock. A participant granted restricted stock generally has all of the rights of a stockholder of the Company, including the right to vote the shares and to receive dividends thereon, unless otherwise determined by the Committee. Prior to settlement, an award of deferred stock carries no voting or dividend rights or other rights associated with share ownership (although dividend equivalents may be granted, as discussed below).

 

The Committee is authorized to grant annual incentive awards, in the form of cash and/or restricted stock, upon achievement of pre-established performance objectives during a specified one-year period. Subject to the requirements of the 1995 Incentive Plan, the Committee will determine other annual incentive award terms. If restricted stock is granted in settlement of an annual incentive award in respect of a given performance year, 50% of such restricted stock shall have a restricted period ending not earlier than the end of the year following such performance year and 50% of such restricted stock shall have a restricted period ending not earlier than the end of the third year following such performance year. The Committee is also authorized to grant shares as a bonus free of restrictions or to grant shares or other awards in lieu of Company obligations to pay cash under other plans or compensatory arrangements, subject to such terms as the Committee may specify.

 

The Board of Directors may amend, alter, suspend, discontinue or terminate the 1995 Incentive Plan or the Committee’s authority to grant awards under the 1995 Incentive Plan. However, such action shall be subject to the approval of the Company’s stockholders at or before the next annual meeting of stockholders for which the record date is after such Board action if such stockholder approval is required by any federal or state law or regulation or the rules of any stock exchange or automated quotation system on which the stock may then be listed or quoted, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to stockholders for approval. In addition, without the consent of an affected participant, no such action may materially impair the rights of such participant under any award theretofore granted to him or her.

 

It is not possible to determine specific amounts that may be awarded in the future under the 1995 Incentive Plan because the grant of awards under the 1995 Incentive Plan is discretionary.

Federal Income Tax Consequences

 

The following is a brief description of the federal income tax consequences generally arising with respect to awards under the 1995 Incentive Plan.

 

The grant of an option or SAR will create no tax consequences for the participant or the Company. A participant will not have taxable income upon exercising an option that is an incentive stock option, except that the alternative minimum tax may apply. Upon exercise of an option other than an ISO, the participant generally must recognize ordinary income equal to the fair market value of the shares delivered to the participant on the date of exercise minus the exercise price. Upon exercise of an SAR, the participant generally must recognize ordinary income equal to the cash or the fair market value of the shares received.

 

A participant granted restricted stock under the 1995 Incentive Plan generally will not be subject to taxation at grant or during the period the award is restricted as to transferability and subject to a substantial risk of forfeiture. If the shares have been delivered to the participant, he or she generally must recognize ordinary income equal to the fair market value of the shares at the time the restricted stock becomes transferable or not subject to a substantial risk of forfeiture. Tax rules permit a participant to elect to be taxed on restricted stock at the time of grant, but if the participant subsequently forfeits such shares he would not be entitled to any tax deduction, including as a capital loss, for the value of the shares on which he previously paid tax. Stock granted as a bonus will represent ordinary income to the participant equal to the fair market value of the shares at the time of grant. With respect to deferred stock, taxation of the participant generally is deferred until stock is delivered to the participant in settlement of the award.

 

To the extent that a participant recognizes ordinary income in the circumstances described above, the Company or the subsidiary for which the participant performs services will be entitled to a corresponding deduction provided that, among other things, the income meets the test of reasonableness, is an ordinary and necessary business expense, is not an “excess parachute payment” within the meaning of Section 280G of the Code and is not disallowed by the $1 million limitation on certain executive compensation under Section 162(m) of the Code.

 

Vote Required

 

Adoption of the proposal to reapprove the material terms for performance-based awards for purposes of Section 162(m) under the 1995 Incentive Plan requires the affirmative vote of the holders of a majority of the shares present in person or by proxy and entitled to vote at the Annual Meeting, subject to a requirement that votes cast represent more than 50% in interest of all securities entitled to vote on the proposal.

 

Reapproval of the material terms for performance-based awards for purposes of Section 162(m) under the 1995 Incentive Plan will not affect any currently outstanding awards. However, such reapproval should permit awards granted in the period from 2010 to 2014 under the 1995 Incentive Plan to remain fully deductible by the Company. It is not possible at this time to determine whether any such awards will be granted or the terms of such awards.

 

The Board of Directors considers the reapproval of the material terms for performance-based awards for purposes of Section 162(m) under the 1995 Incentive Plan to be in the best interests of Harsco Corporation and its stockholders, and therefore recommends that you vote FOR approval of this proposal.

 

The Audit Committee has designated PricewaterhouseCoopers LLP as independent auditors to audit our financial statements for the fiscal year ending December 31, 2009. This firm has audited the financial statements of the Company and its predecessors since 1929. Although not required to do so by law or otherwise, the Audit Committee desires that stockholders ratify its selection of PricewaterhouseCoopers LLP as our independent auditors. Therefore, the Audit Committee’s choice of independent auditors will be submitted for ratification or rejection at the Annual Meeting. In the absence of contrary direction from stockholders, all proxies that are submitted will be voted in favor of the confirmation of PricewaterhouseCoopers LLP as our independent auditors. A representative of PricewaterhouseCoopers LLP will attend the Annual Meeting, with the opportunity to make a statement and answer questions of stockholders.

 

If this proposal is not ratified by a majority of the shares entitled to vote at the Annual Meeting, the appointment of the independent auditors will be reevaluated by the Audit Committee. Due to the difficulty and expense of making any substitution of auditors, it is unlikely that their appointment for the audit of the financial statements for the fiscal year ending December 31, 2009 would be changed. However, the Audit Committee may review whether to seek new independent auditors for the fiscal year ending December 31, 2010.

 

The Audit Committee, at its meeting held on November 10, 2008, reviewed and approved the fee estimate for the annual audit of our fiscal 2008 financial statements and, taking into consideration the possible effect of non-audit services on the auditors’ independence, also reviewed specific non-audit services to be rendered for income tax services.

 

The Board of Directors recommends a vote FOR the ratification of the appointment of PricewaterhouseCoopers LLP as our independent auditors.

 

Executive Summary

 

In the following pages, we discuss how our CEO, CFO, and three other most highly compensated executive officers (our “named executive officers”) were compensated in fiscal 2008, and describe how this compensation fits within our executive compensation philosophy. We also describe certain changes to our executive compensation programs for fiscal 2009.

 

Through the first three quarters of 2008, we engineered steady growth and achieved record results. As we transitioned into the fourth quarter, growth and relative calm turned quickly to extreme turbulence, and we saw the world’s financial and economic conditions deteriorate significantly. As a consequence of the global crisis, our full year’s economic value, or EVA^® added results for two of our segments and for the company as a whole were below established targets for 2008. Only the business units in the “All Other Category,” other than one, achieved or exceeded their EVA targets for 2008. This performance resulted in a significant number of individuals within our company earning little or no annual incentive bonus. As noted below, these individuals include certain of our named executive officers. For the long-term performance goals of diluted earnings per share from continuing operations and cash flow from operating activities, we did surpass our established, three-year targets. This performance resulted in many individuals being awarded their target level of performance-based restricted stock units, though our Compensation Committee did exercise its discretion to reduce awards to certain officers, including named executive officers.

Our executive officer pay determinations in 2008 were based in significant part on our above-mentioned financial performance and on our leadership succession transition plans, which focused on retaining a premier management team. As a result, the top issues considered by us and our Compensation Committee regarding 2008 compensation include the following:

 

 

General Compensation Philosophy

 

In addition to the above, our compensation programs are structured to align the long-term interests of our executives and our stockholders. They are designed to reflect our goal of fair, but conservative, wages, while ensuring that we attract, retain and motivate a premier management team to sustain our competitive advantage in the marketplace, and to provide a framework that encourages outstanding financial results over the long-term. In administering our executive compensation program, we look to accomplish the following:

 

 

In addition to the above goals, we, through our Compensation Committee, administer our executive compensation programs with these guiding principles in mind:

 

Overview of Compensation Program

 

Our executive compensation program is carried out through several compensation methods. Each has its own purpose, but together they work to create a compensation package that both fairly compensates the individual for the services rendered to us and the results achieved and provides appropriate value to us for the payments we have made.

 

The primary compensation methods that we use and the manner in which they are administered include the following:

 

 

In establishing the appropriate allocation of these various compensation components, our management believes that employees in higher ranks should have a higher proportion of their total compensation delivered through pay-for-performance cash incentives and long-term equity compensation; as a result, their compensation will be more significantly correlated, both upward and downward, to our financial performance. We also believe that as executives rise to positions that can have a greater impact on our performance, the compensation program should place more emphasis on the value of our common stock. In all cases, however, we strive to ensure that there is a clear correlation between our performance and the compensation of our employees, such that a difficult year for the company will result in a reduction in total compensation for our employees who work for the affected segments of the business. We believe this best aligns our interests and those of our stockholders, and allows our Board to responsibly perform their duties as they relate to compensation.

 

Compensation Consultants

 

Our Compensation Committee has the authority under its charter to engage the services of outside advisors, experts and others to assist the Committee. The Compensation Committee has not directly engaged an independent compensation consultant, but expects to do so in calendar year 2009.

The Compensation Committee utilizes the following information provided by the following, management-engaged consultants:

 

 

Stern Stewart & Co. was selected and engaged because of their expertise in working with economic value-added programs, both from an operating and from a compensation standpoint. Towers Perrin was chosen to provide compensation services to us because of their broad level of expertise in the compensation and benefits area and their expansive knowledge of relevant market data in these areas. Stern Stewart & Co. and Towers Perrin have in the past attended Compensation Committee meetings upon invitation from our Compensation Committee, though neither consultant attends Compensation Committee meetings on a regular basis.

 

Peer Group and Market Data

 

To ensure that total compensation for the named executive officers is aligned to the market, the Compensation Committee benchmarks salaries, total cash compensation (in other words, salary plus annual cash incentives) and total direct compensation (in other words, salary plus annual cash incentives and long-term incentive awards) annually against survey data provided by Towers Perrin during Towers Perrin’s annual review of executive compensation for our senior executive officers. No other regular, formal benchmarking is undertaken by the Compensation Committee for compensation purposes. The Committee does also on a periodic basis review the competitiveness of aspects of the Company’s benefits package.

 

In preparing the compensation survey data it provides to the Compensation Committee, Towers Perrin utilizes a broad industry-wide benchmarking database of approximately 800 companies. In completing its analysis, Towers Perrin takes into account our size and our lines of business by using regression analysis to adjust the entire database of information such that the market data provided corresponds to organizations and business units of similar size and composition.

 

Benchmarking

 

In reviewing salary, total cash compensation and total direct compensation, the Compensation Committee considers how each named executive officer’s compensation compares to the 50th percentile. We chose to target the 50th percentile based on our belief that our executive officers should be compensated at neither the high nor the low end of compensation as compared to their peers, but should receive a reasonable level of compensation based on both our performance and their individual performance when they perform at the target level.

For 2008, our named executive officers’ compensation was determined to be at the following percentiles of the benchmark group:

 

 

We utilize the same compensation program philosophy and objectives for each of our named executive officers. As a result, salary, annual incentive awards and long-term incentive awards for our named executive officers generally differ only in terms of quantum. The Compensation Committee did not specifically structure its compensation decisions to create notable disparity between the compensation elements paid to our named executive officers. Instead, the differences between the amounts paid to our named executive officers result from the standard application of our compensation policies and formulae, and specifically result from considerations such as:

 

 

Applying the above philosophies to our actual results, you will find that most of our named executive officers were compensated below the range discussed in terms of each of salary, total cash compensation and total direct compensation.

 

This result is due primarily to the fact that each of the named executive officers was promoted to a new senior level position in 2008. The Compensation Committee, when considering compensation for newly promoted officers, does not place them automatically at the target percentile. Instead, each officer must progress to his or her target level salary over time through measurable standards such as goals accomplished and measurable growth within the newly established position. For example, the results for Messrs. Schnoor and Fazzolari, particularly with regard to total direct compensation, are outside of the range discussed above primarily as a result of the significant increase in responsibilities for each of them (Mr. Schnoor was promoted in 2008 from Corporate Controller to CFO and Mr. Fazzolari was promoted in 2008 from President and Chief Financial Officer to Chairman and CEO), their length of service in these positions and the significant difference between the benchmark compensation levels at their old positions versus the benchmark compensation levels at their new positions. The Compensation Committee considered these rationale when establishing compensation for the named executive officers, and determined that the results were acceptable.

 

Role of Management in the Compensation Process

 

Our Chairman and CEO plays several roles in our compensation process. In general, he reviews our proposed overall budget increases for executive officer salaries and approves, on an individual basis, recommendations made by management regarding year-to-year executive

compensation increases. More specifically, our Chairman and CEO reviews both (1) benchmark compensation materials and other related information provided by Towers Perrin, one of our compensation consultants, and (2) recommendations submitted by members of our senior management team, before submitting management’s recommendations to the Compensation Committee regarding salary increases and changes to bonus percentages and equity compensation awards for members of our senior management team, as well as the reasons for these recommended changes. Our Chairman and CEO also provides factual support to the Committee with regard to recommendations to the Committee of senior management salary and incentive where discretion is utilized by the Committee.

 

Our Chairman and CEO also provides the Compensation Committee with factual information on which it bases its decisions regarding his compensation. As an example, our Chairman and CEO meets with the Compensation Committee in executive session during each November to review the progress made on key priorities as well as our results for that fiscal year. Our independent Directors participate in the November session. The Chairman and CEO has no decision-making involvement with respect to his own compensation, however. Instead, the Compensation Committee determines its recommendation regarding the Chairman and CEO’s compensation package for the subsequent fiscal year based on the facts gathered from its meeting with the Chairman and CEO, plus compensation survey information provided to us by Towers Perrin and whatever other information and factors it chooses to consider from year-to-year.

 

The Chairman and CEO has the authority to call Compensation Committee meetings, but we are not aware of any Compensation Committee meeting called by the Chairman and CEO during the past five years. Additionally, the Chairman and CEO has the authority to call and hold meetings with each of Towers Perrin and Stern Stewart & Co. We are unaware of any individual meeting between the Chairman and CEO and any of our compensation consultants in recent history.

 

Impact of Individual Performance

 

The primary factors that the Compensation Committee considers when making compensation decisions for the named executive officers are those related to our overall corporate performance. To a much lesser extent, the Compensation Committee considers individual performance by each of the named executive officers during the course of the year, as evaluated by the Compensation Committee in the case of the CEO, and by the CEO and the Compensation Committee in the case of our other named executive officers. The Compensation Committee also considers the performance of our divisions in the case of the named executive officers who lead such divisions. Individual performance generally has an impact on compensation decisions in only two ways, both of which involve the significant use of discretion on the part of the Compensation Committee.

 

First, if applicable, the Compensation Committee considers individual performance when determining named executive officers’ base salaries. In such cases, certain non-quantifiable factors may be considered by the Compensation Committee when establishing executives’ salaries, including the executives’ performance in leading improvements in the financial performance of poorly performing businesses or divisions, or addressing specific and major company events or issues outside the ordinary course of business (for example, acquisitions, divestitures, financings, restructurings, etc.). Many of these “other” factors are clearly not established, “hard and fast” performance goals, but are qualitative individual performance factors that, if and when taken into consideration, would generally have a significant impact on our performance for the year and the individual officer’s success in his or her position.

Second, if applicable, the Compensation Committee also generally considers individual performance when determining our named executive officers’ long-term incentive compensation awards. When determining the equity awards to be paid out to the named executive officers, the Compensation Committee will first look at our overall performance with respect to the pre-established financial goal or goals. If our overall goals are satisfied, the Compensation Committee next looks to the financial performance of the division for which the officer is responsible, and then to the officer’s individual and non-quantifiable contributions to the Company during the applicable performance period. If the Compensation Committee does not believe that a named executive officer has adequately contributed to our overall performance during the fiscal year, the Compensation Committee may reduce the number of RSUs awarded to the officer (assuming that company-wide performance targets have been achieved such that RSU payouts would have otherwise been approved). The Compensation Committee exercised this type of discretion when determining equity payouts for 2008 with respect to certain officers, including named executive officers.

 

For 2008, the Compensation Committee considered the following individual performance and other quantifiable and non-quantifiable factors (including financial performance factors involving particular divisions within a named executive officer’s area of responsibility) when making compensation decisions for the following named executive officers:

 

 

Components of Executive Compensation

 

Each component of direct and indirect compensation paid to our executive officers for 2008 is summarized in the table below:

 

 

Analysis of 2008 Executive Compensation

 

Salaries

 

In determining annual salary levels for each of our executive officers, our Compensation Committee, took into consideration the following factors:

 

 

Of continuing importance during 2008 were recent promotions in light of the implementation of our senior management succession plan. As a result, our Compensation Committee, in reviewing salaries during 2008, took into account the expanded roles that much of our senior management would experience during calendar year 2008 and, in November 2008, the Compensation Committee approved increases in the base salary levels of the named executive officers ranging from 0% to 8.11% over the prior year’s salary. These salaries were based on the new job responsibilities for each named executive officer. The average level of salary increases for non-executive officers throughout our business was 2.68% and ranged from 0% to 9.09%.

Annual Incentive Compensation Plan

 

After the end of each fiscal year, management presents to our Compensation Committee a summary and recommendation for management incentive bonuses. The presentation includes the following:

 

 

The performance criteria under the 1995 Incentive Plan are periodically approved by our stockholders, were last approved at our 2004 Annual Meeting, and are being submitted for reapproval by our stockholders at our 2009 Annual Meeting.

 

Target Annual Incentive Payouts

 

Payments of annual incentives under the 1995 Incentive Plan are a function of the executive’s annual salary multiplied by the applicable bonus percentage, which in turn is multiplied by a performance percentage. The bonus percentage is determined for each individual executive and is a function of the individual’s level of responsibilities and his or her ability to impact our overall results. The percentage is calculated by multiplying the individual’s salary grade by .02. The .02 is a factor which ties the various salary grades used by us to an appropriate incentive range.

 

The performance percentage is determined based on achievement of EVA objectives and can range from zero to 200%. The target bonus is at 100% performance. Zero and 200% were set as outer limits based on recommendations by our consultant, Stern Stewart & Co., and our desire to keep incentive payments within a certain range. Because of the way the incentive system is structured, there is a 15% probability that either an award of zero or 200% will be achieved. In the past, certain divisional officers have achieved zero payouts as well as 200% payouts. Since the annual incentive program is formula driven and the formula is approved at the same time as the annual performance targets, our Committee only has discretion to reduce the recommended awards for the named executive officers.

 

The target bonus percentages for the named executive officers for 2008 were as follows:

 

 

Actual annual incentive awards to the named executive officers are detailed in the 2008 Summary Compensation Table. As was the case with many companies, we as a whole were impacted by the economic turmoil during calendar year 2008, and annual incentive bonuses were significantly below prior years’ levels. Our Harsco Minerals & Rail business group, however, performed very well and was only slightly impacted by the economic downturn, and as a result, this business group earned its full annual incentive award (200% of target).

Performance Metric for Annual Incentive Compensation Plan; Fiscal 2008 Performance Results for Performance Metric

 

EVA is an operating mindset that is instilled in our employees and is utilized in the way we operate our businesses. In light of this, it was deemed the appropriate measure by which to judge results for incentive purposes. EVA is calculated by subtracting from net operating profit after tax (which is similar to operating earnings less taxes) a charge for capital employed in the particular business (which is the product of the amount of capital utilized multiplied by our cost of capital).

 

EVA improvement is a measure of the growth anticipated by stockholders. It represents the amount that EVA (calculated as described above) must improve each year in order for our current operations value (referred to as COV) to increase to the company’s total market value. COV is calculated as the sum of our current EVA capital plus the value that would be produced if EVA was maintained at its current level (in other words, no growth in EVA) into perpetuity.

 

The 2008 EVA improvement target was developed by our compensation consultant, Stern Stewart & Co., based on the principles outlined above. The payout under the annual incentive bonus program is based on the amount of economic value created in the appropriate year, both for the company as a whole and for the business units for which a senior officer has responsibility. The EVA improvement target for 2008 for the company as a whole was $7,700,000. The EVA improvement required for a target bonus payout for the business units for which Mr. Butler was responsible was $5,183,000 and the EVA improvement required for a target bonus payout for the business units for which Mr. Neuffer was responsible was $2,290,000.

 

In addition to the EVA improvement target, an EVA interval both above and below the EVA improvement target is also calculated. The EVA intervals serve as the guide for determining an officer’s performance bonus multiplier in terms of the amount of EVA improvement actually achieved. For example:

 

 

For 2008, the EVA interval for the company as a whole was $35,500,000. The EVA interval for those business units for which Mr. Butler has responsibility was $31,700,000, and the EVA interval for the business units for which Mr. Neuffer has responsibility was $13,200,000.

 

An example of how the EVA system works may provide clarification. If we as a whole achieved $7,700,000 in EVA improvement, those individuals paid on company-wide performance would receive their target payout amount (100%). If, instead, we as a whole achieved $43,200,000 or more (that is, $7,700,000 plus $35,500,000) in EVA improvement, an individual paid on corporate performance would receive his or her maximum payout amount (200%). If the amount of EVA improvement achieved was less than $7,700,000 but more than a negative $27,800,000 (that is, $7,700,000 minus $35,500,000), then the officer would be entitled to a payout, but the payout would be an amount less than the target payout and calculated by interpolating the percent of the

interval achieved. If the amount of EVA improvement achieved was more than $7,700,000 but less than $43,200,000, then the officer would be entitled to a payout in an amount more than the target payout, calculated by interpolating the percent of the interval achieved.

 

In 2008, we as a whole produced negative $21,120,000 in EVA improvement ($28,820,000 below the applicable EVA target), which resulted in a bonus percentage of 19% for those individuals whose bonuses were based on corporate performance. The business units for which Mr. Butler was responsible generated negative $59,685,000 in EVA improvement ($64,868,000 below the applicable EVA target), which resulted in a bonus percentage of 0% for Mr. Butler. The business units for which Mr. Neuffer was responsible generated $23,035,000 in EVA improvement ($20,745,000 above the applicable EVA target), which resulted in a bonus percentage of 200% for Mr. Neuffer.

 

We, with the input of Stern Stewart & Co., have established minimum, target and maximum objectives for overall EVA performance for 2009 and allocated that target objective among the divisions. Thus, the annual incentive compensation awards of the corporate officers are closely related to the overall performance of the divisions against their EVA goals. Goals are recommended by Stern Stewart to the Committee, and senior management has very limited input into the establishment of the EVA targets.

 

Equity Compensation

 

The primary purpose of our long-term incentive compensation program, as evidenced by grants of RSUs, is to drive maximum stockholder return by directly aligning the interests of management and stockholders and motivating key executives to remain with us. We believe our long-term incentive program achieves this goal by:

 

 

Review of Proposed RSU Target Awards

 

During their November 2008 meeting, after review and consideration of benchmarking information and the performance of the individual officers, the Compensation Committee reviewed proposed RSU grants for each named executive officer for the period ending December 31, 2008, as follows:

 

 

Performance Metrics for RSUs

 

In furtherance of the Company’s pay-for-performance culture, payouts of RSUs are contingent upon satisfaction of certain pre-established performance goals. This is a growing but still minority position among companies offering long-term equity incentives in the form of RSUs. Most are issued on a time expiration basis. Under the restricted stock unit program, performance goals for a

given year have historically been established at least one year in advance by our Compensation Committee. Our Compensation Committee approved the 2008 goals of diluted earnings per share from continuing operations and cash flow from operating activities at its November 14, 2005 meeting and the full Board approved 2007-2009 cumulative EVA performance goals for RSUs at its March 2007 meeting.

 

Performance goals for earnings per share from continuing operations and cash flow from operating activities (for calendar year 2008) and EVA improvement (for calendar years thereafter) are recommended by management to the Committee and are based upon expectations regarding the targeted growth in these measures over the performance period. The recommended objectives are consistent with the objectives discussed with the investment community by management for the longer term periods.

 

Approved 2008 Performance Goals and Performance Results

 

Performance goals for diluted earnings per share from continuing operations and cash flow from operating activities for fiscal 2008 were as follows:

 

 

The actual diluted earnings per share from continuing operations achieved by us in 2008 was $2.92 (which included $0.28 of restructuring charges in the fourth quarter). The actual cash flow from operating activities achieved by us in 2008 was $574 million. The significant over-achievement of the diluted earnings per share from continuing operations goals was the result of several years of earnings growth of over 30%. This growth was achieved by both strong organic growth within each of our businesses, as well as numerous successful acquisitions that have added substantial accretion.

 

Actual RSU Awards

 

The Compensation Committee determines final RSU awards at the first committee meeting at the beginning of the fiscal year based on performance results for the covered period. Because of our strong performance in 2006 and 2007, the long-term incentive goals for the RSU Program, which covers a three-year cycle, were exceeded. As a result, all but one executive officer received their full RSU payout for the 2006 through 2008 cycle of the long-term program. With regard to the one executive officer noted in the previous sentence, while the targets were satisfied, the Committee determined it appropriate to reduce the RSU payout to this executive officer in light of the performance of the operating segments for which he is responsible. Actual RSU awards to the named executive officers for fiscal 2008 are detailed in the Grants of Plan Based Awards for Fiscal Year 2008 Table. The RSU Award amounts shown in the 2008 Summary Compensation Table reflect the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 31, 2008, in accordance with SFAS No. 123(R), of RSU awards under the 1995 Incentive Plan. As a result, the 2008 Summary Compensation Table includes amounts from awards granted in and prior to 2008 and does not include the RSU awards made in January 2009 based on 2008 performance measures, which are discussed in this section.

 

Stock Ownership Guidelines

 

In addition to the strong performance culture as well as holding periods for RSU grants, in 2007, we established stock ownership guidelines which apply to the named executive officers and certain other RSU plan participants, to encourage the retention of stock acquired through our RSU

award program. These guidelines are based on a multiple of an individual’s base salary and were benchmarked against the stock ownership guidelines of similar companies and were also based on the Board’s determination of appropriate share ownership levels based on our compensation system. Under the guidelines, a participant is required to maintain certain share ownership levels of our common stock and is restricted from selling more than half of the shares held by them until the restrictions have been met. The share ownership levels (based on fair market value as measured periodically) for each named executive officer are as follows:

 

 

Individuals to whom the stock ownership guidelines apply have five years from the date they are first granted RSUs to comply with the guidelines in light of their recent establishment. All common stock held by the individual, whether acquired as a result of an RSU grant or otherwise, is included in determining whether a named executive officer has achieved the applicable ownership guideline. Stock options are not included in calculating whether the guidelines have been met. Failure to meet the guidelines within the applicable five-year period on the part of an individual could result in such individual being penalized by the Compensation Committee, whether through a reduction in future grants or otherwise.

 

Total Direct Compensation

 

The Compensation Committee believes the pay elements described above are consistent with our compensation philosophy of paying for performance, paying competitively and attracting and retaining key talent. Each pay element is designed to complement the other and reward the achievement of short-term and long-term objectives. In establishing total direct compensation, after review and consideration of market data, our Compensation Committee reviews each aspect of direct compensation (that is, salary, annual bonus and RSU awards) on both an individual component and a combined basis. The Compensation Committee intends that the total direct compensation combination will result in compensation at the market median.

 

Total direct compensation is further intended to be interrelated, such that the positive or negative performance in one will directly or indirectly affect the performance of the other components. For example, the annual EVA incentive program is directly tied to the level of the individual’s salary because the payment is based on a percentage of salary. Also, as discussed above, the percentage of salary that is received as an annual incentive bonus is a function of the level of achievement of the EVA target and the individual’s salary grade. The level of RSU grants is not a direct function of salary, as target grants are established by our Compensation Committee based on a number of other factors, including the individual’s ability to impact long-term results, his or her performance history and his or her level of salary. However, since the payout of the annual incentive plan is based on EVA and the RSU grants (for 2008) are based on the achievement of diluted earnings per share and cash flow from operating activities goals, although there is no direct correlation between the measures, there are interrelations among these measures such that the positive or negative performance as to one of the measures will likely be reflected in positive or negative performance of the others. For example, one of the components of EVA is net operating profit after tax. While this is not the same as the net income used in determining diluted earnings per

share from continuing operations, there is a strong correlation such that the failure to achieve a diluted earnings per share from continuing operations target, depending upon the level at which it was established, may also be reflected in a lower EVA award because of a lower net operating profit after taxes.

 

During the review of compensation for 2008, which was completed in 2007, and in connection with the preparation of this report, our Compensation Committee did review and take into consideration all aspects of compensation which might be paid to an executive, whenever earned in his or her career. The following table summarizes the direct compensation elements awarded to the named executive officers in fiscal 2008 using the full grant date value for RSUs awarded in 2008. Inclusion of the table is not intended to replace the 2008 Summary Compensation Table, but rather to reflect how the Compensation Committee views the compensation awarded to the named executive officers during the year.

 

 

The conversion rate used for amounts included above with respect to Mr. Butler was £1.00 = $1.65.

 

As noted above, our performance during 2008 has impacted our payouts under the annual incentive plan. However, due to our strong performance in 2006 and 2007, our payouts were at the target/maximum level for the equity incentive plan except in the case of one named executive officer, with regard to whom the Committee exercised its discretion. The Compensation Committee did not exercise its authority to decrease any total direct compensation element payable to the named executive officers for fiscal 2008 other than in this case. Prior years’ performance will not impact the achievability of the 2009 EVA incentive plan targets.

 

Indirect Compensation Elements

 

We have in place the following broad-based employee benefit plans in which the U.S. executive officers participate on the same terms as U.S. non-executive employees:

 

 

Many of the above benefits are now offered on the same basis to all similarly situated employees (for example, to all U.S. employees). The relative amount of life insurance and disability insurance offered to a named executive officer is a function of the individual’s salary, as is the amount contributed to the individual’s 401(k) account, although that is also a function of the percentage of salary that the individual chooses to contribute to the plan and IRS maximum

contribution limitations. In addition, the executive officers other than Mr. Butler participate in the Supplemental Retirement Benefit Plan (which we refer to as the SERP) as described under the section “Retirement Plans” below, which supplements the qualified pension plan, and in the non-qualified Retirement Savings and Investment Plan (referred to as the RSIP), which supplements our 401(k) Savings Plan with respect to contributions that could not be made because of Internal Revenue Service compensation and contribution limitations.

 

We also provide other benefits to certain executives including a change in control severance policy described below. Certain named executive officers, namely Messrs. Butler, Fazzolari and Neuffer, are entitled to cars provided by us or a cash allowance alternative, and the Board of Directors has approved a policy regarding the CEO’s personal use of our aircraft. Corporate aircraft are used primarily for business travel and the Board policy includes a limitation on annual personal use unless the additional use is approved by the Lead Director of the Board. The CEO is taxed on the imputed income attributable to personal aircraft use and does not receive tax assistance from us with respect to those amounts. For more information on the perquisites provided and to whom they apply, see the All Other Compensation Table which serves as a supplement to the 2008 Summary Compensation Table.

 

Our philosophy is to position the aggregate of these elements of compensation at a level that is competitive with our size and performance relative to other leading peer companies, as well as a larger group of general industry companies. We further believe that these other aspects of the executive compensation program are reasonable, competitive and consistent with the overall executive compensation program in that they help us attract and retain the best leaders.

 

Potential Payments upon Change in Control and Other Potential Post-Employment Payments

 

Change in Control Severance Agreements

 

On June 21, 2005, the Board of Directors authorized us to amend employment agreements then in place with Messrs. Fazzolari and Butler and one other officer who has since retired, and to enter into similar forms of agreements with certain of our corporate officers, including Mr. Kimmel and Mr. Schnoor (together with Messrs. Fazzolari and Butler, referred to as the Change in Control Officers), which provide that in the event of a change in control, each such officer will remain in our employ for a period of three years from the date of the change in control (or to such officer’s normal retirement date, if earlier), subject to the Change in Control Officers’ right to resign during a thirty-day period commencing one year from the date of the change in control or for good reason. As a result of its reviews and analyses, the Compensation Committee also approved reductions in certain features of our change in control arrangements due to the fact that prior payment levels were no longer consistent with our philosophy regarding severance payments in general, which looks inward and to our overall employee severance arrangements rather than outward and toward a review of peer company policies. The Compensation Committee, following such review, determined that the remaining payment and benefit levels provided for under the change in control and other termination arrangements were consistent with our general severance philosophy. The Change in Control Agreements were further amended in 2008 to ensure their compliance with Internal Revenue Code Section 409A. For more information, see Termination or Change in Control Arrangements and the corresponding tables below.

The Compensation Committee believes that the Change in Control Agreements serve the following purposes:

 

 

The change in control arrangements are reviewed on a regular basis, but not necessarily as part of the annual compensation review. This is because we generally consider the change in control agreements as compensation elements separate and apart from the other elements of our compensation arrangements. More specifically, the payments or benefits available under the change in control agreements do not have any significant impact on the Compensation Committee’s general compensation decisions relating to salary and incentive payments. Instead, the Compensation Committee considers that the change in control agreements are in place to cover a specific and unlikely circumstance, namely if we are acquired and the executives lose their jobs. In this way, payments and benefits available under the change in control agreements are not viewed by the Compensation Committee as amounts that should impact the compensation amounts awarded on a year-to-year basis to the named executive officers for their ongoing management of the company.

 

Other Potential Post Employment Payments

 

Upon certain types of terminations of employment not related to a change in control, payments under various company policies and plans may be paid to the named executive officers. These events and amounts are more fully explained in the Termination or Change in Control Arrangements section below.

 

Policy Regarding Tax Impact on Executive Compensation

 

Deductibility of Executive Compensation

 

Section 162(m) of the Internal Revenue Code generally limits to $1 million the U.S. federal tax deductibility of compensation paid in one year by publicly traded corporations to the chief executive officer and the four other executives named in the compensation table of the Proxy Statement. Performance-based compensation is not subject to the limits on deductibility of Section 162(m), provided such compensation meets certain requirements, including stockholder approval of material terms of compensation.

 

We intend, to the extent practicable, to preserve deductibility under the Internal Revenue Code of compensation paid to our executive officers while maintaining compensation programs that effectively attract and retain exceptional executives in a highly competitive environment and, accordingly, compensation paid under our incentive compensation plans is generally tax-deductible. However, on occasion it is not possible to satisfy all conditions of the Internal Revenue Code for deductibility and still meet our compensation needs, and in such limited situations, we may choose to pay compensation that would otherwise not be deductible under Section 162(m) if we believe that it is appropriate and in our best interest.

Personal Use of Corporate Aircraft

 

In connection with our allowing personal use of our corporate aircraft by certain of our named executive officers, a portion of our related expense is non-deductible under recent changes to U.S. federal income tax law. We treat such personal use as compensation, as reported in the “All Other Compensation” column of the 2008 Summary Compensation Table.

 

The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management. Based on this review and discussion, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008 and our Proxy Statement for our 2009 Annual Meeting of Stockholders, for filing with the Securities and Exchange Commission (referred to herein as the Commission).

 

SUBMITTED BY THE MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS:

 

D. H. Pierce, Chairman

T. D. Growcock

H. W. Knueppel

C. F. Scanlan

J. I. Scheiner

A. J. Sordoni, III

 

The foregoing report shall not be deemed to be “soliciting material” or to be “filed” with the Commission or subject to Regulation 14A promulgated by the Commission or Section 18 of the Securities Exchange Act of 1934.

 

The following table presents the compensation provided to Mr. Fazzolari, Chairman and Chief Executive Officer, as well as the four other most highly compensated executive officers, for services rendered to us in 2006, 2007 and 2008.

 

 

 

 

We also provide certain perquisites to the named executive officers. The following table summarizes the incremental cost of perquisites and other benefits for the named executive officers in 2006, 2007 and 2008 and describes the other benefits included in the “All Other Compensation” column.

 

 

 

The following table sets forth information concerning plan-based awards to the named executive officers during fiscal year 2008 as well as estimated future payouts under such plans:

 

 

 

Annual Incentive Compensation Plan; Long-Term Compensation Plan

 

For additional details of our Annual Incentive Compensation Plan and Long-Term Compensation Plan payments, please see the descriptions set forth on pages 33 and 35 of this Proxy Statement. For additional details about the relationship of salary, bonus and long-term compensation to total compensation, please see the “Compensation Discussion and Analysis” section of this Proxy Statement.

 

 

The following table sets forth information concerning outstanding equity awards of the named executive officers as of December 31, 2008.