Exhibit 10.10


 




 





 


EMPLOYMENT AGREEMENT


 


 


BETWEEN


 


 


PQ CORPORATION


 


 


AND


 


 


MICHAEL R. BOYCE


 


 


FEBRUARY 11, 2005


 




 





 





















 


EMPLOYMENT
AGREEMENT dated as of August 15, 2005,
and effective as of February 11, 2005, by and between PQ Corporation, a Pennsylvania
corporation (the “Company”) and wholly-owned subsidiary of Niagara
Holdings, Inc., a Delaware corporation (“Holdings”), and Michael R.
Boyce (the “Executive”).


 


WHEREAS,
pursuant to that certain Agreement and Plan of Merger dated as of December 15,
2004 (the “Merger Agreement”) by and among the Company, Holdings and
Niagara Acquisition, Inc., a Delaware corporation and wholly-owned subsidiary
of Holdings (“Merger Sub”), Merger Sub was merged with and into PQ, with
PQ as the surviving corporation (the “Merger”) effective as of February
11, 2005.


 


WHEREAS,
the Company desires to employ the Executive, and the Executive desires to
accept such employment, on the terms and subject to the conditions hereinafter
set forth.  The Company acknowledges that
the Executive is also the owner of Peak Investments, L.L.C., the Managing
Partner of Peak Chemical LLC,  and the Chairman and Chief Executive
Officer of (i) Peak Lime, Inc. d/b/a Southern Lime and (ii) Peak Sulfer
Inc.  The Company understands that the
Executive will maintain all his interests and positions in all the Peak
Companies (as defined herein) notwithstanding his employment with the Company
hereunder.  Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in Section
13.


 


NOW,
THEREFORE, in consideration of the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


Section 1.               Employment.


 


The Company shall employ the
Executive, and the Executive accepts employment with the Company, upon the
terms and conditions set forth in this Agreement for the period beginning on February
11, 2005 (the “Effective Date”) and ending on the Termination Date
determined pursuant to Section 4(a) (the “Employment Period”).


 


Section 2.               Position and Duties.


 


(a)           During the Employment Period, the Executive shall
serve as the Chief Executive Officer of the Company and shall have the usual
and customary duties, responsibilities and authority of a Chief Executive Officer
subject to the power of the Board (i) with the Executive’s consent, to
expand or limit such duties, responsibilities and authority and (ii) to
override the actions of the Executive. 
During the Employment Period, the Executive shall also serve as Chairman
of the Board without additional compensation. 
The Executive acknowledges and agrees that he owes a fiduciary duty of
loyalty to the Company to discharge his duties and otherwise act in a manner
consistent with the best interests of the Company and its Subsidiaries.


 


(b)           During the Employment Period, except with the prior
consent of the Board (excluding the Executive if he should be a member of the
Board at the time of such determination), the Executive shall devote his best efforts
and all of his working time, attention and energies to the performance of his
duties and responsibilities under this Agreement (except for vacations to which
he is entitled pursuant to Section 3(a) and except for illness or
incapacity).


 





















 


The Executive shall not engage in any
business activity which, in the reasonable judgment of the Board (excluding the
Executive if he should be a member of the Board at the time of such
determination), conflicts with the duties of the Executive hereunder, whether
or not such activity is pursued for gain, profit or other pecuniary advantage.  Provided such time and attention does not
materially interfere with his duties to the Company, the Board agrees that the
Executive’s duties, responsibilities and activities on behalf of and to the
Peak Companies will not be considered to conflict with the Executive’s duties
to the Company under this Section 2.


 


Section 3.               Base Salary, Bonus and Benefits.


 


(a)           During the Employment Period, the Executive’s base
salary shall be $500,000 per annum, or such higher rate as the Board or
Compensation Committee of the Board (excluding the Executive if he should be a
member of the Board or the Compensation Committee at the time of such
determination) may designate from time to time (the “Base Salary”),
which salary shall be payable in such installments as is customary for other
senior executives of the Company.  The
Executive shall be entitled to take four (4) weeks of paid vacation
annually.  The Board or Compensation
Committee shall conduct a review of the Executive’s Base Salary on an annual
basis.  During the Employment Period, the
Executive shall also be entitled to participate in the standard benefit plans
available to the Company’s employees generally, in accordance with the terms and
conditions of such plans as in effect from time to time.


 


(b)           Executive shall be eligible to receive, in addition to
the Base Salary, an annual bonus (the “Bonus”) for services rendered
during each calendar year in the Employment Period.  The amount of Bonus, if any, payable in
respect of any calendar year will be determined based on the achievement of
performance goals established by the Board or Compensation Committee within the
first 90 days of such year.  The target
Bonus in respect of each calendar year (the “Target Bonus Percentage”) will
equal 100% of the base salary paid or payable to the Executive for such year.


 


(i)            Notwithstanding anything to the
contrary in this Section 3(b), the Bonus payable with respect to 2005
shall be $500,000, provided the Executive remains employed with the Company through
the applicable payment date.


 


(ii)           The Bonus, if any, payable with
respect to a calendar year shall be paid within thirty (30) days following the
rendering of the Company’s audited financial statements for the relevant
calendar year, subject to Executive’s continued employment with the Company through
such payment date.


 


(c)           The Company shall reimburse the Executive for all
reasonable and necessary expenses incurred by him in the course of performing
his duties under this Agreement which are consistent with the Company’s
policies in effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company’s requirements with respect to
reporting and documentation of such expenses.


 


(d)           The Company shall deduct from any
payments to be made by it to or on behalf of the Executive under this Agreement
any amounts required to be withheld in respect of any federal, state or local
income or other taxes.


 


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Section 4.               Termination.


 


(a)           Termination Date.  The Executive’s
employment under this Agreement shall terminate upon the earliest to occur (the
date of such occurrence being the “Termination Date”) of (i) the
expiration of the Term; (ii) the effective date of the Executive’s resignation
other than for Good Reason (a “Resignation”); (iii) the Executive’s
death or Disability (an “Involuntary Termination”); (iv) the effective
date of a termination of the Executive’s employment for Cause by the Board (a “Termination
for Cause”); (v) the effective date of Executive’s resignation for Good
Reason (a “Termination for Good Reason”) and (vi) the effective date of
a termination of the Executive’s employment by the Board for reasons that do
not constitute Cause (a “Termination without Cause”).  The effective date of a Resignation or
Termination for Good Reason shall be as determined under Section 4(b); the
effective date of an Involuntary Termination shall be the date of death or, in
the event of a Disability, the date specified in a notice delivered to the
Executive by the Company; and the effective date of a Termination for Cause or
a Termination without Cause shall be the date specified in a notice delivered
to the Executive by the Company of such termination.


 


(b)           Resignation or Termination for Good Reason. 
The Executive shall give the Company at least 30 days’ prior written
notice of his Resignation or Termination for Good Reason, with the effective
date thereof specified therein.  The
Board may, in its discretion, accelerate the effective date of such termination
of employment.


 


(c)           Term/Renewal.  The initial
term of employment under this Agreement (the “Initial Term”) shall be
for the period beginning on the Effective Date and ending on the fifth
anniversary thereof, unless earlier terminated pursuant to Section 4(a);
provided that the term of employment may be extended for one or more additional
one (1) year period(s) (each, an “Extension Term”) by mutual agreement
of the Company and the Executive not later than 90 days prior to the expiration
of the Initial Term or Extension Term, if any, then in effect.  The Initial Term and any Extension Term shall
be collectively referred to as the “Term” hereunder.  Nothing stated in this Agreement or
represented orally or in writing to either party shall create any obligation of
either party to renew this Agreement.


 


Section 5.               Effect of Termination; Severance.  


 


(a)           General.  In the event
of the Executive’s termination of employment for any reason, the Executive or
his estate or beneficiaries shall have the right to receive the following:


 


(i)            the unpaid portion of the Base
Salary and paid time off accrued and payable through the Termination Date; and


 


(ii)           reimbursement for any expenses for which the Executive shall not have been
previously reimbursed, as provided in Section 3(c).


 


The Executive
(or his estate or beneficiaries) shall be entitled to the cash severance
payments described below only as set forth herein, and the provisions of this Section
5 shall supersede in their entirety any severance payment provisions in any
severance plan, policy, program or arrangement maintained by the Company.


 


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(b)           Termination without Cause or Termination for Good
Reason. In
the event of a Termination without Cause or a Termination for Good Reason, and subject
to the Executive’s entering into a Release Agreement with the Company in
substantially the form attached hereto as Exhibit A (the “Release”),
the Executive shall have the right to receive the following:


 


(i)            the Base Salary provided by Section
3(a) hereof for a period of eighteen (18) months from the Termination Date
(the “Severance Period”), such amount to be deemed liquidated damages
and payable at the applicable payroll periods; provided, however,
that in the event of a breach by the Executive of Section 6, 7, 8,
or 9 on or after the Termination Date, the provisions of Section 11
shall apply;


 


(ii)           a pro rata amount of the Bonus, if
any, which would have been payable to the Executive for the calendar year in
which such termination occurs, determined after the end of the calendar year in
which such termination occurs and equal to the amount which would have been
payable to the Executive if Executive’s employment had not been terminated
during such calendar year multiplied by a fraction, the numerator of which is
the number of whole months the Executive was employed by the Company during
such calendar year and the denominator of which is 12.  Any pro rata bonus payable under this Section
5(b)(ii) shall be paid in substantially equal installments over the
remaining term of the Severance Period following calculation of such pro rata
bonus amount;


 


(iii)          an amount equal to the product of
(A) the amount of the Bonus, if any, paid or payable to the Executive in
respect of the most recently completed fiscal year ending on or prior to the
Termination Date and (B) 1.5, to be paid in substantially equal installments
over the Severance Period; and


 


(iv)          an amount equal to any earned but
unpaid Bonus in respect of fiscal years ending on or prior to the Termination
Date, to be paid in substantially equal installments over the Severance Period.


 


(c)           Involuntary Termination. 
In the event of an Involuntary Termination, the Executive (or his estate
or beneficiaries) shall have the right to receive a pro rata amount of the
Bonus, if any, which would have been payable to the Executive for the calendar
year in which such termination occurs, determined after the end of the calendar
year in which such termination occurs and equal to the amount which would have
been payable to the Executive if Executive’s employment had not been terminated
during such calendar year multiplied by a fraction, the numerator of which is
the number of whole months the Executive was employed by the Company during
such calendar year and the denominator of which is 12.  Any pro rata bonus payable under this Section
5(c) shall be paid within thirty days following the determination of such
pro rata bonus amount.


 


(d)           The rights of the Executive set forth in this Section
5 are intended to be the Executive’s exclusive remedy for termination and,
to the greatest extent permitted by applicable law, the Executive waives all
other remedies.


 


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Section 6.               Nondisclosure and Nonuse of Confidential
Information.


 


The Executive will not
disclose or use at any time, either during the Employment Period or thereafter,
any Confidential Information of which the Executive is or becomes aware, except
to the extent that (i) such disclosure or use is directly related to and
required by the Executive’s performance of duties assigned to the Executive by
the Company; (ii) to the extent that such disclosure is required in connection
with any action by the Executive to enforce rights under this Agreement or
(iii) such disclosure is required by a court of law, governmental agency, or by
any administrative or legislative body with jurisdiction to order the Executive
to divulge or disclose such Confidential Information; provided, that,
the Executive shall provide ten (10) days prior written notice to the Company
of any such requirement or order to disclose Confidential Information so that
the Company may seek a protective order or similar remedy; and, provided,
further, that, in each case set forth above, the Executive informs the
recipients that such information or communication is confidential in nature.


 


Section 7.               Inventions and Patents.


 


The Executive agrees that
all Work Product belongs to the Company. 
The Executive will promptly disclose such Work Product to the Board and
perform all actions reasonably requested by the Board (whether during or after
the Employment Period) to establish and confirm such ownership (including,
without limitation, the execution and delivery of assignments, consents, powers
of attorney and other instruments) and to provide reasonable assistance to the
Company in connection with the prosecution of any applications for patents,
trademarks, trade names, service marks or reissues thereof or in the
prosecution or defense of interferences relating to any Work Product.


 


Section 8.               Non-Compete and Non-Solicitation.


 


The Executive acknowledges
and agrees with the Company that during the course of the Executive’s employment
with the Company, the Executive will have the opportunity to develop
relationships with existing employees, customers and other business associates
of the Company and its Subsidiaries which relationships constitute goodwill of
the Company, and the Company would be irreparably damaged if the Executive were
to take actions that would damage or misappropriate such goodwill.  Accordingly, the Executive agrees as follows:


 


(a)           The Executive acknowledges that the Company currently
conducts its business throughout North America, South America, Europe and Asia
(the “Territory”).  Accordingly,
during the Term and during the 18-month period following the Termination Date
(the “Non-Compete Period”), the Executive shall not, directly or
indirectly, enter into, engage in, assist, give or lend funds to or otherwise
finance, be employed by or consult with, or have a financial or other interest
in, any business which engages within the Territory in any business in which
the Company engages, whether for or by himself or as an independent contractor,
agent, stockholder, partner or joint ventures for any other Person (any such
activity, “Competition”).  To the
extent that the covenant provided for in this Section 8(a) may later be
deemed by a court to be too broad to be enforced with respect to its duration
or with respect to any particular activity or geographic area, the court making
such determination shall have the power to reduce the duration or scope of the
provision, and to add or delete specific words or phrases to or from the
provision.  The


 


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provision as modified shall then be enforced.  Notwithstanding the foregoing, the primary
business activity conducted by each of the Peak Companies as of the Effective
Time shall not constitute Competition hereunder.


 


(b)           Notwithstanding the foregoing, the aggregate ownership
by the Executive of no more than two (2) percent (on a fully-diluted basis) of
the outstanding equity securities of any Person, which securities are traded on
a national or foreign securities exchange, quoted on the NASDAQ stock market or
other automated quotation system, and which Person competes with the Company
(or any part thereof) within the Territory, shall not be deemed to be a
violation of Section 8(a).  In the
event that any Person in which the Executive has any financial or other
interest directly or indirectly enters into a line of business during the
Non-Compete Period that competes with the Company or engages in the business of
the Company within the Territory, the Executive shall divest all of his
interest (other than as permitted to be held pursuant to the first sentence of
this Section 8(b)) in such Person within 15 days after such Person
enters into such line of business that competes with the Company or engages in
such business within the Territory.


 


(c)           The Executive covenants and agrees that during the Term
and during the 18-month period following the Termination Date, except as
expressly provided herein, the Executive will not, directly or indirectly,
either for himself or for any other Person (i) solicit any employee or
consultant of the Company or any of its Subsidiaries to terminate his or her
employment or consulting relationship with the Company or any of its
Subsidiaries; (ii) employ any employee or consultant of the Company or any of
its Subsidiaries during the period of his or her employment or consulting
relationship with the Company or any of its Subsidiaries; (iii) solicit
any customer of the Company or any of its Subsidiaries to purchase or
distribute information, products or services of or on behalf of the Executive
or such other Person that are competitive with the information, products or
services provided by the Company or any of its Subsidiaries or (iv) take
any action that may cause injury to the relationships between the Company or
any of its Subsidiaries or any of their employees and any lessor, lessee,
vendor, supplier, customer, distributor, employee, consultant or other business
associate of the Company or any of its Subsidiaries as such relationship
relates to the Company’s or any of its Subsidiaries’ conduct of their business.
 Notwithstanding the preceding sentence,
the provisions of this Section 8(c) shall not apply to the solicitation
or employment of the members of the Peak Group; provided, however,
that nothing herein shall be construed as an amendment, waiver or modification
to any other term or provision of this Agreement, or to any restrictive
covenant or other provision contained in any agreement between any member of
the Peak Group and Holdings, the Company or any Subsidiary of either of them.


 


(d)           The Executive understands that the foregoing
restrictions may limit his ability to earn a livelihood in a business similar
to the business of the Company and any of its Subsidiaries, but he nevertheless
believes that he has received and will receive sufficient consideration and
other benefits as an employee of the Company and as otherwise provided
hereunder or as described in the recitals hereto to clearly justify such restrictions
which, in any event (given his education, skills and ability), the Executive
does not believe would prevent him from otherwise earning a living.


 


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Section 9.               Delivery of Materials Upon Termination of
Employment.


 


The Executive shall deliver
to the Company at the termination of the Employment Period or at any time the
Company may request all memoranda, notes, plans, records, reports, computer
tapes and software and other documents and data (and copies thereof) relating
to the Confidential Information or Work Product which he may then possess or
have under his control regardless of the location or form of such material and,
if requested by the Company, will provide the Company with written confirmation
that all such materials have been delivered to the Company.


 


Section 10.             Insurance.


 


The Company may, for its own
benefit, maintain “key man” life and disability insurance policies covering the
Executive.  The Executive will cooperate
with the Company and provide such information or other assistance as the
Company may reasonably request in connection with the Company obtaining and
maintaining such policies.


 


Section 11.             Enforcement. 


 


Because the Executive’s
services are unique and because the Executive has access to Confidential
Information and Work Product, the parties hereto agree that money damages would
be an inadequate remedy for any breach of this Agreement.  Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).  In addition to the foregoing, and not in any
way in limitation thereof, or in limitation of any right or remedy otherwise
available to the Company, if the Executive violates any provision of the
foregoing Sections 6, 7, 8 or 9, any payments then
or thereafter due from the Company to the Executive pursuant to Section 5(b)
shall be terminated forthwith and the Company’s obligation to pay and the
Executive’s right to receive such payments shall terminate and be of no further
force or effect, in each case without limiting or affecting the Executive’s
obligations under such Sections 6, 7, 8 and 9 or
the Company’s other rights and remedies available at law or equity.


 


Section 12.             Representations.


 


(a)           Each party hereby represents and warrants to the other
party that (a) the execution, delivery and performance of this Agreement by
such party does not and will not conflict with, breach, violate or cause a
default under any agreement, contract or instrument to which such party is a
party or any judgment, order or decree to which such party is subject, and (b)
upon the execution and delivery of this Agreement by such party, this Agreement
will be a valid and binding obligation of such party, enforceable in accordance
with its terms, except as enforcement hereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting creditors rights
generally or by general principles of equity. 
In addition, the Executive represents and warrants to the Company that
except as set forth on Schedule 1 attached hereto, the Executive is not
a party to or bound by any employment agreement, consulting agreement,
non-compete agreement, confidentiality agreement or similar agreement with any
other Person.


 


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(b)           The Executive (or a trust established for the benefit
of his family members) has purchased, directly or indirectly, or has caused PQP
LLC to purchase for his or its benefit, not less than one thousand (1000)
shares of Class B Common Stock (the “Executive Stock”).  The Executive represents and warrants that at
all times during the Employment Period, he shall maintain his direct or
indirect beneficial ownership of the Executive Stock (as adjusted for any stock
dividend, stock split, reverse stock split or recapitalization) and shall not
transfer, and shall cause the record owner of the Executive Stock or any voting
or economic interest therein not to transfer, the Executive Stock other than pursuant
to and in compliance with the Stockholders Agreement.


 


Section 13.             Definitions.


 


“Board” shall mean
the board of directors of the Company.


 


“Business Day” shall
mean any day that is not a Saturday, Sunday, or a day on which banking
institutions in New York are not required to be open.


 


“Cause” shall mean
(i) the failure by the Executive to observe any material Company policies and
material policies of all Subsidiaries of the Company generally applicable to
executives of the Company and/or its Subsidiaries of which the Executive has
notice; (ii) gross negligence or willful misconduct by the Executive in the
performance of his duties or the Executive’s willful disregard of his duties; (iii)
the commission by the Executive of any act which results in his conviction, or
plea of guilty or no contest to, a felony, or his commission of any act
involving moral turpitude, fraud or theft; (iv) the material breach by the
Executive of (A) this Agreement, including, without limitation, any breach by
the Executive of the provisions of Section 6, Section 7 or Section
8, (B) any Subscription Agreement or Restricted Stock Agreement or (C) any
Stockholders Agreement to which the Company or Holdings and the Executive may
become a party or (v) any acts of dishonesty undertaken by the Executive and
intended to result in substantial enrichment, at the Company’s expense, of the
Executive or any other Person.


 


“Change of Control” shall
mean the first occurrence of any one of the following:  (i) a change
in the ownership or control of the Company effected through a transaction or
series of transactions (including by way of merger, consolidation, business
combination or similar transaction involving the Company or any of its
Subsidiaries) whereby any “person” or related “group” of “persons” (as such
terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than
the Company, any of its Subsidiaries, an employee benefit plan maintained by
the Company or any of its Subsidiaries, or a “person” that, prior to such
transaction, directly or indirectly controls, is controlled by, or is under
common control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act), of 50% or
more of the total combined voting power of the Company’s Shares outstanding
immediately after such transaction or series of transactions; or (ii) the sale,
lease, transfer, conveyance or other disposition (other than by way of a
transaction that would not be deemed a Change of Control pursuant to clause (i)
above), in one or a series of related transactions, of all or substantially all
of the assets of the Company and its Subsidiaries taken as a whole, to any “person”
(as defined above).


 


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“Class B Common Stock” shall mean the Class B Common Stock,
$0.01 par value per share, of Holdings.


 


“Company” shall have
the meaning set forth in the preamble; provided, that, for purposes of Sections
6, 7, 8 and 9, “Company” shall include Niagara Holdings, Inc.


 


“Confidential Information”
shall mean information that is not generally known to the public and that is or
was used, developed or obtained by the Company or any of its Subsidiaries or
affiliates, known by the Executive as a consequence of his employment with, or
direct or indirect services as agent, employee or consultant, to or on behalf
of, the Company or Holdings or any Subsidiary or affiliate of either of them, including,
but not limited to the following: (i) information, observations, procedures
and data concerning the business or affairs of the Company or any of its
Subsidiaries; (ii) products or services; (iii) costs and pricing structures;
(iv) analyses; (v) drawings, photographs and reports; (vi) computer
software, including operating systems, applications and program listings; (vii)
flow charts, manuals and documentation; (viii) data bases; (ix) accounting
and business methods; (x) inventions, devices, new developments, methods and
processes, whether patentable or unpatentable and whether or not reduced to
practice; (xi) customers, vendors, suppliers and customer, vendor and supplier
lists; (xii) other copyrightable works; (xiii) all production methods,
processes, technology and trade secrets and (xiv) all similar and related
information in whatever form. 
Confidential Information will not include any information that has been
published in a form generally available to the public prior to the date the
Executive proposes to disclose or use such information.  Confidential Information will not be deemed
to have been published merely because individual portions of the information
have been separately published, but only if all material features comprising
such information have been published in combination.


 


“Disability” shall
mean the physical or mental illness, disease or incapacity of the Executive (i)
that renders him substantially unable to perform all of his duties under this
Agreement for a period of 90 consecutive days or longer, or for 90 or more days
in any period of 365 consecutive days, or (ii) that, in the opinion of a
physician selected by the Board (excluding the Executive if the Executive is a
member of the Board at such time), but reasonably acceptable to the Executive,
is likely to prevent the Executive from substantially performing all of his
duties under this Agreement for more than 90 days in any period of 365
consecutive days.


 


“Good Reason” shall
mean the occurrence of any of the following events without the prior consent of
the Executive:  (i) a material reduction
in the Executive’s authority, duties and responsibilities, excluding for this
purpose isolated or immaterial actions or (ii) a reduction in the Base Salary
or Target Bonus Percentage or any failure by the Company to provide any
material payment or benefit under this Agreement; provided, however,
that in each case the Executive may not resign his employment for Good Reason
unless: (x) he provides the Company with at least 30 days’ prior written notice
of his intent to resign for Good Reason (which notice is provided not later
than the 30th day following the occurrence of the event constituting Good
Reason) and (y) the Company does not remedy the alleged violation(s) within
such 30-day notice period.  In addition
to the foregoing, the Executive shall have “Good Reason” to resign his
employment upon 30 days’ prior written notice not later than 90 days following
the occurrence of a Change of Control.


 


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“Peak Companies”
shall mean Peak Investments, L.L.C., Peak Chemical LLC, Peak Lime, Inc. d/b/a
Southern Lime and Peak Sulfur Inc.


 


“Peak Group” shall
mean Paul Ferrall, Scott Randolph, William Sichko and Billy Whalen.


 


“Person” shall be
construed broadly and shall include, without limitation, an individual, a
partnership, an investment fund, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.


 


“Representative” shall
mean, with respect to a deceased Executive, the duly appointed, qualified and
acting personal representative (or personal representatives collectively) of
the estate of the deceased Executive (or portion of such estate that includes
Executive Stock), whether such personal representative holds the position of
executor, administrator or other similar position qualified to act on behalf of
such estate.


 


“Restricted Stock
Agreement” shall mean the Restricted Stock Agreement, dated on or about the
date hereof, relating to the vesting, sale and other matters involving the
stock of Holdings held by the Executive.


 


“Stockholders Agreement”
shall mean the Stockholders Agreement dated on or about the Effective Date
between Holdings and certain stockholders of Holdings, as amended, modified or
supplemented from time to time.


 


“Subscription Agreement”
shall mean that certain Subscription and Stock Purchase Agreement dated on or
about the date hereof between Holdings and the Executive.


 


“Subsidiary” or “Subsidiaries”
of any Person shall mean any corporation, partnership, joint venture or other
legal entity of which such Person (either alone or through or together with any
other Person), owns, directly or indirectly, 50% or more of the stock or other
equity interests which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation or other legal
entity.


 


“Work Product” shall
mean all inventions, innovations, improvements, technical information, systems,
software developments, methods, designs, analyses, drawings, reports, service
marks, trademarks, tradenames, logos and all similar or related information
(whether patentable or unpatentable) which relates to the Company’s or any of
its Subsidiaries’ actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by the Executive (whether or not during usual business hours and whether
or not alone or in conjunction with any other Person) while employed by the
Company together with all patent applications, letters patent, trademark,
tradename and service mark applications or registrations, copyrights and
reissues thereof that may be granted for or upon any of the foregoing.


 


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Section 14.             General Provisions.


 


(a)           Severability.  It is the
desire and intent of the Parties hereto that the provisions of this Agreement
be enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought.  Accordingly, if any particular provision of
this Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
this Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction.  Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.


 


(b)           Notices.  All notices,
requests, demands, claims and other communications hereunder shall be in
writing and sufficient if (i) delivered personally, (ii) delivered by certified
United States Post Office mail, return receipt requested, (iii) telecopied or
(iv) sent to the recipient by a nationally-recognized overnight courier service
(charges prepaid) and addressed to the intended recipient as set forth below:


 


	
  (i)

  	
  if to the Executive, to him at his most recent address in the
  Company’s records,

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  	
  Peak Investments, L.L.C.

  
	
   

  	
   

  	
  15700 College Blvd.

  
	
   

  	
   

  	
  Suite 101

  
	
   

  	
   

  	
  Lenexa, KS 66219

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  William J. Sichko, Jr.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
  (913) 227-0287

  



 


	
  (ii)

  	
  if to the Company, to:

  	
  PQ Corporation

  
	
   

  	
   

  	
  c/o J.P. Morgan Partners (BHCA), L.P.

  
	
   

  	
   

  	
  1221 Avenue of the Americas, 39th Floor

  
	
   

  	
   

  	
  New York, New York 10020

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Timothy J. Walsh

  
	
   

  	
   

  	
   

  	
  Stephen V. McKenna

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile: (212) 899-3401

  



 


11





















 


	
   

  	
  with a copy to:

  	
  Latham
  & Watkins LLP

  
	
   

  	
   

  	
  885 Third Avenue, Suite 1000

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  David S. Allinson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile: (212) 751-4864

  



 


or such other
address as the recipient party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith.  Any such communication shall deemed to have
been delivered and received (a) in the case of personal delivery, on the date
of such delivery, (b) in the case of delivery by mail, on the third Business
Day following such mailing, (c) if telecopied, on the date telecopied, and (d)
in the case of delivery by nationally-recognized, overnight courier, on the
Business Day following dispatch.


 


(c)           Entire Agreement.  This
Agreement, the Subscription Agreement, the Restricted Stock Agreement and the
Stockholders Agreement embody the complete agreement and understanding among
the parties and supersede and preempt any prior or contemporaneous
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.


 


(d)           Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.


 


(e)           Successors and Assigns. 
Except as otherwise provided herein, this Agreement shall bind and inure
to the benefit of and be enforceable by the Executive and the Company and their
respective successors, assigns, heirs, representatives and estate, as the case
may be; provided, however, that the obligations of the Executive
under this Agreement shall not be assigned without the prior written consent of
the Company.


 


(f)            Amendment and Waiver. 
The provisions of this Agreement may be amended and waived only with the
prior written consent of the Company and the Executive, and no course of
conduct or failure or delay in enforcing the provisions of this Agreement shall
affect the validity, binding effect or enforceability of this Agreement or any
provision hereof.


 


(g)           Governing Law.  This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Delaware without giving effect to any choice or conflict
of law provision or rule that would cause the application of the laws of any
jurisdiction other than the State of Delaware.


 


(h)           Descriptive Headings; Nouns and Pronouns. 
Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.  Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.


 


12





















 


(i)            Non-Qualified Deferred Compensation. 
The parties acknowledge and agree that, to the extent applicable, this
Agreement shall be interpreted in accordance with Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and Department of Treasury
regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued
after the date hereof.  Notwithstanding
any provision of this Agreement to the contrary, in the event that the Company
determines that any amounts payable hereunder will be immediately taxable to
the Executive under Section 409A of the Code and related Department of Treasury
guidance, the Company may (a) adopt such amendments to this Agreement and
appropriate policies and procedures, including amendments and policies with
retroactive effect, that the Company determines necessary or appropriate to
preserve the intended tax treatment of the benefits provided by this Agreement
and/or (b) take such other actions as the Company determines necessary or
appropriate to comply with the requirements of Section 409A of the Code and
related Department of Treasury guidance, including such Department of Treasury
guidance and other interpretive materials as may be issued after the date
hereof.


 


(j)            Waiver of Jury Trial. 
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.


 


*     *    
*     *     *


 


13





















 


IN WITNESS WHEREOF, the parties
hereto have executed this Employment Agreement as of the date first written
above.


 


	
   

  	
  PQ CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Sichko

  	
   

  
	
   

  	
   

  	
  Name: William J. Sichko

  
	
   

  	
   

  	
  Title: Chief Administrative Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael R. Boyce

  	
   

  
	
   

  	
  Michael R. Boyce, individually

  
					



 





















 


SCHEDULE 1


 


Non-Compete Agreement with Peak Lime, Inc.
dated December 31, 2001


 





















 


EXHIBIT A


 


FORM OF GENERAL RELEASE AND WAIVER OF CLAIMS


 


This General Release and Waiver of Claims (hereafter “Agreement”) is
entered into by and between PQ Corporation, a Pennsylvania corporation (the “Company”)
and                                                 
(the “Employee”) on                                   .


 


In consideration of the mutual promises and covenants contained herein
and in the Employment Agreement by and between the Company and the Employee
dated                                 
(the “Employment Agreement”), and other good and valuable consideration,
the receipt of which hereby is acknowledged, the parties agree as follows:


 


Section 1.               Release
and Waiver of Claims.  Effective as
of                                         ,
in consideration of the payments, benefits, and other considerations provided
to the Employee under the Employment Agreement, the Employee, for the Employee
and the Employee’s family, heirs, executors, administrators, legal
representatives, and their respective successors and assigns, hereby releases
and forever discharges the Company, and all of its subsidiaries, officers,
directors, employees, agents, stockholders, representatives, and their
successors and assigns (collectively, “Company Entities”), from all rights,
claims or demands the Employee may have, arising at any time on or before the
date hereof, based on or arising out of the Employee’s employment with any
Company Entity or the termination of that employment, including without
limitation any claims under the Employment Agreement, or based on any services
provided to any Company Entity by the Employee other than pursuant to an
employment relationship with any Company Entity.  This includes a release of any and all
rights, claims or demands the Employee may have, whether known or unknown,
under the Age Discrimination in Employment Act (“ADEA”), which prohibits age
discrimination in employment; Title VII of the Civil Rights Act of 1964, which
prohibits discrimination in employment based on race, color, national origin,
religion or sex; the Equal Pay Act, which prohibits paying men and women
unequal pay for equal work; or under any other federal, state or local laws or
regulations regarding employment discrimination or termination of employment.  This also includes a release by the Employee
of any claims for wrongful discharge or discrimination under any statute, rule,
regulation or under the common law, including, without limitation, the
Sarbanes-Oxley Act.  The Employee hereby
agrees never individually or with any person to file, or commence the filing
of, any charges, lawsuits, complaints or proceedings with any governmental
agency, or against any Company Entity, with respect to any of the matters
released by the Employee pursuant to this Section 1.


 


Section 2.               Rights
Not Released or Waived.  Section 1
hereof notwithstanding, by signing this Agreement the Employee shall not have
relinquished any right to enforce the provisions of this Agreement.


 


Section 3.               Release
and Waiver of Claims Under the Age Discrimination in Employment Act.  The Employee acknowledges that the Company
has encouraged the Employee to consult with an attorney of the Employee’s
choosing and, through this Agreement, encourages the Employee to consult with
an attorney with respect to any possible claims the Employee may have,
including claims under the ADEA, as well as under the other federal, state and
local laws described in Section 1 hereof. 
The Employee understands that by signing this Agreement the Employee is
in


 





















 


fact waiving, releasing and forever giving up any claim under the ADEA,
as well as all other federal, state and local laws described in Section 1
hereof that may have existed on or prior to the date hereof.


 


Section 4.               Waiting
Period and Revocation Period.  The
Employee hereby acknowledges that the Company has informed the Employee that
the Employee has up to twenty-one (21) days to consider this Agreement and the
Employee may knowingly and voluntarily waive that twenty-one (21) day period by
signing this Agreement earlier.  The
Employee also understands that the Employee shall have seven (7) days following
the date on which the Employee signs this Agreement within which to revoke it
by providing a written notice of revocation to the Company.


 


Section 5.               Acceptance.  To accept this Agreement, the Employee shall
execute and date this Agreement on the spaces provided and return a copy to the
Company at any time during the twenty-one (21) day period commencing on the
date hereof.  This Agreement shall take
effect on the eighth day following the Employee’s execution of this Agreement
unless the Employee’s written revocation is delivered to the Company within
seven (7) days after such execution.


 


Section 6.               Entire
Agreement.  This Agreement represents
the entire agreement of the parties with respect to the Employee’s employment
and termination thereof.  Except as
specifically provided herein, this Agreement shall supersede any written
employment agreement between the parties hereto in all respects effective as of
the date hereof.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF                                 
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.


 


IN WITNESS
WHEREOF, and with the intention of being legally bound
hereby, the Employee has executed this General Release and Waiver of Claims.


 


 


	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
  [Employee]

  	
   

  	
   

  



 


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