Contract
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EXHIBIT 10.1
April 19, 2021
Xxxxx X. Xxxxxxxxx
[ Redacted ]
The parties to this Memorandum of Employment (“Agreement”) are
Xxxxx X. Xxxxxxxxx
and
Quaker Chemical
Corporation
, a Pennsylvania corporation, doing business as Quaker Houghton (“Quaker Houghton” or the “Company”).
You are appointed Quaker Houghton’s Senior Vice President and Chief Financial Officer effective as of the date listed above
and Quaker Houghton wishes to enter into this Agreement containing certain covenants in connection with this appointment.
bound hereby the parties hereto agree as follows:
1.
Duties
Quaker Houghton agrees to employ you and you agree to serve as Quaker Houghton’s Senior Vice President and Chief
Financial Officer, located at our Conshohocken, PA facility. You shall perform all duties consistent with such position as well as any
other duties that are assigned to you from time to time by Quaker Houghton’s Chief Executive Officer. You agree that during the term
of your employment with Quaker Houghton to devote your knowledge, skill, and working time solely and exclusively to the business
and interests of Quaker Houghton and its subsidiaries. Any and all prior employment or other agreements, with the exception of the
April 19, 2021 Change of Control agreement, are hereby terminated and have no further legal effect.
2. Compensation
of Directors, in consultation with the Chief Executive Officer. In addition, you will be entitled to participate, to the extent eligible, in
any of Quaker Houghton’s annual and long term incentive plans, retirement savings plan (401k plan), and will be entitled to paid time
off, paid holidays, and medical, dental, and other benefits as are made generally available by Quaker Houghton to its full-time U.S.
employees.
3. Term of Employment
.
Your employment with Quaker Houghton may be terminated on thirty (30) days' written notice by either party, with or
without cause or reason whatsoever. Within thirty (30) days after termination of your employment, you will be given an accounting of
all monies due you. Notwithstanding the foregoing, Quaker Houghton has the right to terminate your employment upon less than
thirty (30) days’ notice for Cause (as defined below).
4. Covenant Not to Disclose
a. You acknowledge that the identity of Quaker Houghton's (and any of Quaker Houghton's affiliates’) customers, the
requirements of such customers, pricing and payment terms quoted and charged to such customers, the identity of Quaker Houghton's
suppliers and terms of supply (and the suppliers and related terms of supply of any of Quaker Houghton's customers for which
management services are being provided), information concerning the method and conduct of Quaker Houghton's (and any affiliate’s)
business such as formulae, formulation information, application technology, manufacturing information, marketing information,
strategic and marketing plans, financial information, financial statements (audited and unaudited), budgets, corporate practices and
procedures, research and development efforts, and laboratory test methods and all of Quaker Houghton's (and its affiliates’) manuals,
documents, notes, letters, records, and computer programs are Quaker Houghton's confidential information ("Confidential
Information") and are Quaker Houghton’s (and/or any of its affiliates’, as the case may be) sole and exclusive property. You agree
that at no time during or following your employment with Quaker Houghton will you appropriate for your own use, divulge or pass
on, directly or through any other individual or entity or to any third party, any Quaker Houghton Confidential Information. Upon
termination of your employment with Quaker Houghton and prior to final payment of all monies due to you under Section 2 or at any
other time upon Quaker Houghton's request, you agree to surrender immediately to Quaker Houghton any and all materials in your
possession or control which include or contain any Quaker Houghton Confidential Information.
b. You acknowledge that, by this Section 4(b), you have been notified in accordance with the Defend Trade Secrets
Act that, notwithstanding the foregoing:
(i)
You will not be held criminally or civilly liable under any federal or state trade secret law or this
Agreement for the disclosure of Confidential Information that: (A) you make (1) in confidence to a federal, state, or local government
official, either directly or indirectly, or to your attorney; and (2) solely for the purpose of reporting or investigating a suspected
violation of law; or (B) you make in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
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(ii)
If you file a lawsuit for retaliation by Quaker Houghton for reporting a suspected violation of law,
you may disclose Confidential Information to your attorney and use the Confidential Information in the court proceeding if you: (A)
file any document containing Confidential Information under seal and (B) do not disclose Confidential Information, except pursuant to
court order.
interfere with your right, without prior notice to Quaker Houghton, to provide information to the government, participate in any
government investigations, file a court or administrative complaint, testify in proceedings regarding Quaker Houghton’s past or future
conduct, or engage in any future activities protected under any statute administered by any government agency.
5. Covenant Not to Compete
In consideration of your new position with Quaker Houghton and the training and Confidential Information you are to receive
from Quaker Houghton, you agree that during your employment with Quaker Houghton and for a period of one (1) year thereafter,
regardless of the reason for your termination, you will not:
a. directly or indirectly, together or separately or with any third party, whether as an employee, individual proprietor,
partner, stockholder, officer, director, or investor, or in a joint venture or any other capacity whatsoever, actively engage in business or
assist anyone or any firm in business as a manufacturer, seller, or distributor of specialty chemical products which are the same, like,
similar to, or which compete with Quaker Houghton’s (or any of its affiliates’) products or services; and
b. directly or indirectly recruit, solicit or encourage any Quaker Houghton (or any of its affiliates’) employee or
otherwise induce such employee to leave Quaker Houghton’s (or any of its affiliates’) employ, or to become an employee or otherwise
be associated with you or any firm, corporation, business, or other entity with which you are or may become associated; and
. solicit or induce any of Quaker Houghton's suppliers of products and/or services (or a supplier of products and/or
services of a customer who is being provided or solicited for the provision of chemical management services by Quaker Houghton) to
terminate or alter its contractual relationship with Quaker Houghton (and/or any such customer).
The parties consider these restrictions reasonable, including the period of time during which the restrictions are effective.
However, if any restriction or the period of time specified should be found to be unreasonable in any court proceeding, then such
restriction shall be modified or the period of time shall be shortened as is found to be reasonab le so that the foregoing covenant not to
compete may be enforced. You agree that in the event of a breach or threatened breach by you of the provisions of the restrictive
covenants contained in Section 4 or in this Section 5, Quaker Houghton will suffer irreparable harm, and monetary damages may not
be an adequate remedy. Therefore, if any breach occurs, or is threatened, in addition to all other remedies available to Quaker
Houghton, at law or in equity, Quaker Houghton shall be entitled as a matter of right to specific performance of the covenants
contained herein by way of temporary or permanent injunctive relief. In the event of any breach of the restrictive covenant contained
in this Section 5, the term of the restrictive covenant shall be extended by a period of time equal to that period beginning on the date
such violation commenced and ending when the activities constituting such violation cease.
6. Contractual Restrictions
You represent and warrant to Quaker Houghton that: (a) there are no restrictions, agreements, or understandings to which you
are a party that would prevent or make unlawful your employment with Quaker Houghton and (b) your employment by Quaker
Houghton shall not constitute a breach of any contract, agreement, or understanding, oral or written, to which you are a party or by
which you are bound. You further represent that you will not use any trade secret, proprietary or otherwise confidential information
belonging to a prior employer or other third party in connection with your employment with Quaker Houghton.
7. Inventions
All improvements, modifications, formulations, processes, discoveries or inventions ("Inventions"), whether or not
patentable, which were originated, conceived or developed by you solely or jointly with others (a) during your working hours or at
Quaker Houghton’s expense or at Quaker Houghton's premises or at a customer’s premises or (b) during your employment with
Quaker Houghton and additionally for a period of one year thereafter, and which relate to (i) Quaker Houghton’s business or (ii) any
research, products, processes, devices, or machines under actual or anticipated development or investigation by Quaker Houghton at
the earlier of (i) that time or (ii) as the date of termination of employment, shall be Quaker Houghton’s sole property. You shall
promptly disclose to Quaker Houghton all Inventions that you conceive or become aware of at any time during your employment with
Quaker Houghton and shall keep complete, accurate, and authentic notes, data and records of all Inventions and of all work done by
you solely or jointly with others, in the manner directed by Quaker Houghton. You hereby transfer and assign to Quaker Houghton all
of your right, title, and interest in and to any and all Inventions which may be conceived or developed by you solely or jointly with
others during your employment with Quaker Houghton. You shall assist Quaker Houghton in applying, obtaining, and enforcing any
United States Letters Patent and Foreign Letters Patent on any such Inventions and to take such other actions as may be necessary or
desirable to protect Quaker Houghton's interests therein. Upon request, you shall execute any and all applications, assignments, or
other documents that Quaker Houghton deems necessary and desirable for such purposes. You have attached hereto a list of
unpatented inventions that you have made or conceived prior to your employment with Quaker Houghton, and it is agreed that those
inventions shall be excluded from the terms of this Agreement.
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8.
Termination
defined herein). If you incur a Separation from Service by decision and action of Quaker Houghton for any reason other than Cause,
death, or Disability (as defined below), Quaker Houghton agrees to:
a. Provide you with reasonable outplacement assistance, either by providing the services in-kind, or by reimbursing
reasonable expenses actually incurred by you in connection with your Separation from Service. The outplacement services must be
provided during the one-year period following your Separation from Service. If any expenses are to be reimbursed, you must request
the reimbursement within eighteen months of your Separation from Service and reimbursement will be made within 30 days of your
request.
b. Pay you one year's severance in twenty -four semi-monthly installments commencing on the Payment Date and
continuing on Quaker Houghton's normal semi-monthly payroll dates each month thereafter, each of which is equal to your semi-
monthly base salary at the time of your Separation from Service, provided you sign a Release within 45 days of the later of the date
you receive the Release or your Separation from Service. Continuation of medical and dental coverage’s will be consistent with
current Quaker Houghton severance program in place at the time of termination.
“Separation from Service”
of Treas. Reg. §1.409A-1(h) or any successor thereto.
breach of this Agreement (after hav ing received notice thereof and a reasonable opportunity to cure or correct) or the Company’s
policies, (ii) dishonesty, fraud, willful malfeasance, gross negligence, or other gross misconduct, in each case relating to the
performance of your duties hereun der which is materially injurious to Quaker Houghton, or (iii) conviction of or plea of guilty or nolo
contendere to a felony.
“Payment Date”
defined in Treas. Reg. §1.409A-1(i)) as of the date of your Separation from Service, and the severance described in subsection (b) is
deferred compensation subject to section 409A of the Code, the first business day of the seventh month following the month in which
your Separation from Service occurs. If the Payment Date is described in clause (y), the amount paid on the Payment Date shall
include all monthly installments that would have been paid earlier had clause (y) not been applicable, plus interest at the Wall Street
Journal Prime Rate published in the Wall Street Journal on the date of your Separation from Service (or the previous business day if
such day is not a business day), for the period from the date payment would have been made had clause (y) not been applicable
through the date payment is made.
“Release”
all related parties with respect to all matters arising out of your employment with Quaker Houghton, or the termination thereof (other
than for claims for any entitlements under the terms of this Agreement or any plans or programs of Quaker Houghton under which you
have accrued a benefit) that Quaker Houghton provides to you no later than ten days after your Separation from Service. If a release is
not provided to you within this time period, the severance shall be paid even if you do not sign a release.
“Disability”
Houghton for employees generally or, if Quaker Houghton does not maintain such a plan, the long-term disability plan most recently
maintained by Quaker Houghton for employees generally.
9. Indemnification.
any claim, action, suit, investigation or proceeding arising out of or relating to performance by you of services for, or action of you,
director, officer or employee of the Company or any parent, subsidiary or affiliate of the Company, or of any other person or
enterprise at the Company’s request. Expenses incurred by you in defending such claim, action, suit or investigation or criminal
proceeding shall be paid by the Company in advance of the final disposition thereof upon the receipt by the Company of an
undertaking by or on behalf of you to repay said amount unless it shall ultimately be determined that you are entitled to be
indemnified hereunder; provided, however, that this shall not apply to a nonderivative action commenced by the Company against
you.
10. Governing Law.
Pennsylvania without reference to principles of conflicts of laws.
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11. Miscellaneous
This Agreement and any Change in Control Agreement to which you are a party, constitute the entire integrated agreement
concerning the subjects covered herein. In case any provision of this Agreement shall be invalid, illegal, or otherwise unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not thereby be affected or impaired. You may not assign any
of your rights or obligations under this Agreement without Quaker Houghton’s prior written consent. Quaker Houghton may assign
this Agreement in its discretion, including to any affiliate or upon a sale of assets or equity, merger or other corporate transaction;
provided that Quaker Houghton obtains the assignee’s written commitment to honor the terms and conditions contained herein. This
Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania without regard to
any conflict of laws. This Agreement shall be binding upon you, your heirs, executors, and administrators and shall inure to the
benefit of Quaker Houghton as well as its successors and assigns. In the event of any overlap in the restrictions contained herein,
including Sections 4 and/or 5 above, with similar restrictions contained in any other agreement, such restrictions shall be read together
so as to provide the broadest restriction possible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.
WITNESS:
QUAKER CHEMICAL CORPORATION DBA
QUAKER HOUGHTON
/s/ Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
WITNESS:
/s/ Xxxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
ADDENDUM 1
Base Salary:
Your salary will be payable on a bi-weekly basis at an annualized rate of $390,000.
You will be eligible for your next salary increase in 2022.
Annual and Long-
Term Bonuses:
For your position, you are eligible to participate in the Annual Incentive Plan
(“AIP”) with target and double target award percentages for 2021 under the AIP of
60% and 120%, respectively, of your base salary, dependent upon Quaker
Houghton’s financial results and other objectives to be determined.
You were eligible to participate in the 2021 -2023 Long Term Incentive Plan (LTIP)
at a target level award of $103,000. In consideration of accepting your new role,
you award will be increased by $200,000 for a total target level award opportunity of
$303,000. Your award for the 2021 -2023 performance period includes an even mix
of time-based restricted stock, stock options, and target performance stock units.
All incentive compensation awards are made at the Company’s discretion, are
subject to change, and require the approval of the Compensation Committee.
Benefits:
Quaker Houghton offers a Flexible Benefits Program that is subject to change. This
gives you the opportunity to choose from a variety of options creating a customized
benefits package. The following benefits are currently part of the program. In each
of these areas, you are offered a range of options so you may choose the ones that
make the most sense for your personal situation.
●
Medical
●
Dental
●
Life & AD&D Insurance
●
Long-term Disability
●
Health Care and Dependent Care Flexible Spending Accounts (FSAs)
●
Retirement Savings Plan (401k)
PTO/Holidays:
You will be eligible for the amount of PTO days per calendar year based on your
tenure with Quaker Houghton per the Company’s PTO Plan. In addition, you will
continue to be eligible to be paid for regional holidays. Unused PTO days will not
roll over from year to year (other than a maximum of 5 days in 2021 as previously
announced by the Company).
