Exhibit 10.39
January 29, 2009
Mr. David A. Harrison
14 Elm Street
Denville, NJ 07834
Re:
Consulting Agreement
Dear Dave:
This letter agreement (the
“Agreement”), effective as of January 30, 2009
(the “Effective Date”), when accepted and agreed to by
you (“Consultant”) and Building Materials Corporation
of America (“GAF”), shall constitute the agreement
between Consultant and GAF pursuant to which Consultant is to
provide consulting services to GAF and its affiliates and/or
subsidiaries as set forth herein.
WHEREAS, Consultant has prior
experience with GAF’s business and industry, and the parties
seek to establish the terms and conditions pursuant to which
Consultant shall provide services, advice and expertise on the
subject matter designated herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1.
Consulting Services
. A. During the term of
this Agreement, Consultant shall provide GAF with the consulting
services described herein (the “Services”), when and as
directed by GAF’s Designated Representative identified in
Paragraph 2, below. Such Services shall generally
involve the services described in Paragraphs 4.A and 4.B below, and
such other work or special projects as GAF’s Designated
Representative shall direct from time to time.
B.
All such Services shall be performed at times and locations
approved by GAF’s Designated Representative. Consultant
will not maintain an office at any GAF facility.
C.
Additional Services to be provided by Consultant shall only be
authorized if approved in advance and in writing by GAF’s
Designated Representative, or such other person as is designated in
writing from time to time by GAF. If such additional Services
are not so authorized in advance, GAF shall not be responsible for
payment of the same.
D.
Consultant acknowledges and agrees that Consultant shall be
providing consulting services pursuant to this Agreement as an
independent contractor and that this Agreement does not, and is not
intended to, create any employer-employee relationship between
Consultant and GAF. As such, Consultant acknowledges that
Consultant is not eligible to participate in, and waives any claims
to, any type of benefits offered to employees of GAF, its
affiliates or subsidiaries, including, but not limited to,
vacation, sick leave, holiday pay, payroll taxes, workers’
compensation, and unemployment compensation insurance.
E.
Consultant agrees to use his best efforts to meet GAF’s
requests and to provide GAF with the full benefit of his knowledge,
experience, and skill in the field. Consultant warrants that
his Services shall be performed in a professional and workmanlike
manner and according to the highest standards of the
industry.
2.
Designated
Representative . In
rendering the Services to be provided hereunder, Consultant shall
receive instructions from Robert B. Tafaro as GAF’s
Designated Representative (unless notified to the contrary in
writing by GAF).
3.
Compensation
.
A. For the first twelve (12)
months of this Agreement (the “Initial Period”), GAF
shall pay consultant a monthly fee of twenty-eight thousand dollars
($28,000.00) (or prorated amount for any portion of a month, as
determined by days within the month).
B. For the six (6) months
following the Initial Period (the “Extended Period”),
GAF shall pay consultant a monthly fee of ten thousand dollars
($10,000.00) (or prorated amount for any portion of a month, as
determined by days within the month).
C. Notwithstanding any
provision to the contrary contained herein, at any time during the
Initial Period, Consultant may elect, upon ten
(10) days’ written notice to GAF, to provide the
Guaranteed Initial Period Reduced Services (as defined below) and
receive a monthly fee of fourteen thousand dollars ($14,000.00) (or
prorated amount for any portion of a month, as determined by days
within the month), in lieu of, and not in addition to, the
compensation provided for in Paragraph 3.A. If Consultant
makes such election, the election shall terminate at the end of the
Initial Period.
D. Notwithstanding any
provision to the contrary contained herein, at any time during the
Extended Period, Consultant may elect, upon ten
(10) days’ written notice to GAF, to provide the
Guaranteed Extended Period Reduced Services (as defined below) and
receive a monthly fee of five thousand dollars ($5,000.00) (or
prorated amount for any portion thereof) in lieu of, and not in
addition to, the compensation provided for in Paragraph
3.B.
E. The Company may, in
its sole discretion, authorize consultant to perform some or all of
the Guaranteed Initial Period Services, Guaranteed Extended Period
Services, Guaranteed Initial Period Reduced Services, or Guaranteed
Extended Period Reduced
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Services (collectively, the
“Guaranteed Services”), as applicable, but shall pay
Consultant the full amount for the applicable Guaranteed Services,
as provided in Paragraphs 3.A, 3.B, 3.C or 3.D.
4.
Services .
A. For the Initial
Period, upon the request and direction of GAF, Consultant shall
(i) attend or conduct seminars or other meetings with GAF
certified contractors or such other persons as requested by GAF
(each day of such seminars or meetings, not including days for
preparation and travel, a “Contractor Event”) for that
number of Contractor Events as requested by GAF pursuant to
Section 4.F. but not to exceed twenty-five (25) Contractor
Events, and (ii) perform, upon the request and at the
direction of GAF, no more than twenty (20) hours per month of
Services in addition to the Contractor Events (collectively, the
“Guaranteed Initial Period Services”).
B. For the Extended Period,
upon the request and at the direction of GAF, Consultant shall
(i) attend or conduct that number of Contractor Events as
requested by GAF pursuant to Section 4.F. but not to exceed
eleven (11) Contractor Events, and (ii) perform, upon the
request and direction of GAF, no more than ten (10) hours per
month of Services in addition to the Contractor Events
(collectively, the “Guaranteed Extended Period
Services”).
C. “Guaranteed Initial
Period Reduced Services” shall mean performing, upon the
request and at the direction of GAF, no more than twenty (20) hours
per month of Services.
D. “Guaranteed Extended
Period Reduced Services” shall mean performing, upon the
request and at the direction of GAF, no more than ten
(10) hours per month of Services.
E. In addition to that
number of (i) Contractor Events or (ii) hours of
consulting services included as part of the Guaranteed Initial
Period Services or Guaranteed Extended Period Services, as
applicable, GAF and Consultant may mutually agree that Consultant
(A) attend or conduct additional Contractor Events in exchange
for payment to Consultant equal to two thousand five hundred
dollars ($2,500.00) per Contractor Event or (B) perform
additional consulting services for payment to Consultant equal to
two thousand five hundred dollars ($2,500.00) per work day of eight
(8) hours and prorated for any portion of a day worked less
than eight (8) hours.
F. The parties agree to
the following process for scheduling Contractor Events. For
Contractor Events previously scheduled with Consultant prior to the
execution of this Agreement to take place prior to April 1,
2009, Consultant acknowledges notice of such Contractor Events and
hereby confirms his availability to attend such Contractor
Events. For the avoidance of doubt, Consultant’s
attendance and participation at the International Roofing
Exposition in February 2009 shall not be considered a
Contractor Event.
For the April 2009 through
May 2009 period, Consultant shall provide to GAF by
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February 1, 2009 his dates of
unavailability and GAF shall select dates on which Consultant will
attend Contractor Events no later than February 28,
2009. To the extent GAF wishes to schedule events in
March 2009 in addition to those already scheduled as of the
date of this Agreement, GAF will provide Harrison at least thirty
(30) days notice for those particular dates.
For each period from
September through October during the term of this
Agreement, including any renewal periods, Consultant shall provide
to GAF by the immediately preceding July 1 his dates of
unavailability and GAF shall select dates on which Consultant will
attend Contractor Events no later than the immediately preceding
July 31.
For each period from
January through May during the term of this Agreement,
including any renewal periods, commencing with the period beginning
January 1, 2010, Consultant shall provide to GAF by the
immediately preceding November 15 his dates of unavailability
and GAF shall select dates on which Consultant will attend
Contractor Events no later than the immediately preceding
December 15.
If GAF requests Consultant to
participate in any Contractor Event outside of the time periods
described above, it shall provide Consultant with at least sixty
(60) days notice, and Consultant may propose alternative dates if
he is unavailable on the date proposed.
In providing dates of
Consultant’s unavailability, Consultant agrees that he will
be available at least sixty percent (60%) of the business days for
each period. GAF agrees to schedule Contractor Events in a
logistically reasonable manner so that Consultant has sufficient
time to travel between Contractor Events (for example, two days to
travel between an event in Florida and an event in
Oregon).
G. Consultant shall
submit an invoice at the end of each calendar month during the term
hereof to GAF for the fees incurred by GAF pursuant to Paragraph 3
above for that month. Said invoice shall be accompanied by
appropriate supporting documentation, satisfactory to GAF,
evidencing the days and hours worked by Consultant, if any, during
said calendar month and any reimbursable expenses incurred in
accordance with Section 3 of the General Terms and Conditions
attached hereto for which Consultant seeks payment and
reimbursement, respectively, hereunder. GAF shall review each
invoice and the supporting documentation accompanying the same and,
unless disputed by GAF, pay the amount set forth in each such
invoice within thirty (30) days after GAF’s receipt of the
same.
5.
Term . A. The term of this Agreement
shall commence as of the Effective Date and shall terminate
eighteen (18) months from the Effective Date unless earlier
terminated as provided herein (the “Original
Term”).
B.
Either party may terminate this Agreement at any time without cause
or reason and without any further liability, obligation or
responsibility hereunder to the other party or any third party,
except for fees earned by Consultant in accordance with this
Agreement prior to such termination, upon not less than thirty (30)
days prior written
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notice to the other party. A
termination by GAF during the Original Term pursuant to this
Paragraph 5.B. shall not terminate GAF’s payment obligations
pursuant to Paragraph 3.A., 3.B., 3.C, or 3.D., as
applicable.
C.
This Agreement shall terminate automatically and without any
further liability, obligation or responsibility hereunder upon the
timely revocation by Consultant of the Separation Agreement and
General Rele
