Exhibit 10.38
SEPARATION AGREEMENT AND GENERAL
RELEASE
This Separation Agreement and
General Release (the “Agreement”) is entered into as of
January 30, 2009 by and between Building Materials Corporation
of America (“GAF”, as more fully defined in Paragraph
17 of this Agreement), and David A. Harrison
(“Harrison”), sometimes herein collectively referred to
as “the Parties”.
WITNESSETH:
WHEREAS, Harrison was employed
at-will by GAF or its predecessors or subsidiaries most recently as
Senior Vice President – Chief Marketing Officer in Wayne, New
Jersey and was a member of the Board of Directors of GAF and its
subsidiaries; and
WHEREAS, Harrison wishes to
voluntarily terminate his at–will employment with GAF and
resign from the Board of Directors of GAF and its subsidiaries
effective the date hereof; and
WHEREAS, GAF agrees to provide
Harrison with certain consideration as set forth herein including
its agreement to enter into a Consulting Agreement with Harrison
attached hereto as Exhibit A and made a part of this
Agreement, provided he agrees to execute this Agreement;
WHEREAS, GAF has determined that
Harrison has no days of earned but unused vacation days;
and
WHEREAS, Harrison has been advised
of his right to consult an attorney before signing this
Agreement.
NOW, THEREFORE, in consideration of
the covenants herein undertaken, and the releases herein contained
including the general release in Paragraph 5 of this Agreement, and
for other good and valuable consideration, receipt of which is
hereby acknowledged by the parties, GAF and Harrison agree as
follows:
1.
Harrison voluntarily terminates his
employment with GAF and resigns from the Board of Directors of GAF
and its subsidiaries effective the date hereof (the
“Separation Date”). Harrison agrees to execute
any paperwork reasonably necessary to effectuate this separation.
After the Separation Date, Harrison shall no longer serve as
Senior Vice President – Chief Marketing Officer or in any
other position or capacity with GAF except as otherwise
specifically provided in the Consulting Agreement. Except as
otherwise provided herein, Harrison shall return to GAF all
GAF-owned or used property in his possession as soon as practicable
and he will not retain copies of any confidential GAF information
or material.
2.
GAF agrees to provide the following
pay, benefits, and other consideration to Harrison:
(a)
GAF shall enter into a Consulting
Agreement in the form attached hereto as Exhibit A and made a
part of this Agreement.
(b)
Beginning February 1, 2009,
Harrison is eligible to elect the continuation of his group medical
and/or dental insurance coverage provided by GAF as provided by the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”). After January 31, 2009, Harrison
shall no longer be eligible for any other welfare benefit not
included in COBRA continuation coverage or for participation in any
pension benefit including GAF’s 401k plan.
(c)
GAF agrees to sell to Harrison the
Company-leased automobile currently in his possession for a total
of one dollar ($1.00). Harrison acknowledges and agrees that
he shall be solely responsible for compliance with any applicable
Internal Revenue Service regulations with respect to any tax
consequences or obligations associated with the purchase of this
automobile. The Parties acknowledge that the automobile is
being sold “as is” without any warranty, express or
implied. GAF makes no representations regarding the
automobile and upon execution of the sale, GAF has no further
responsibilities or liabilities associated with the
automobile.
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(d)
GAF agrees to sell to Harrison the Company-owned laptop computer
currently in his possession for a total of one dollar
($1.00). Harrison acknowledges and agrees that he shall be
solely responsible for compliance with any applicable Internal
Revenue Service regulations with respect to any tax consequences or
obligations associated with the purchase of this computer. As
a condition to the sale, Harrison agrees to return the computer to
GAF to allow GAF to copy or remove all GAF proprietary information,
data and applications and any other information, data or
applications as determined by GAF in its sole discretion. GAF
agrees to remove all GAF-specific applications, network log-ins and
other applications so as to allow unrestricted use of the
computer. GAF agrees to use reasonable efforts to return said
computer to Harrison within one (1) business day from the time
it is returned to GAF. The Parties acknowledge that the
laptop is being sold “as is” without any warranty,
express or implied. GAF makes no representations regarding
the computer and upon execution of the sale, GAF has no further
responsibilities, except as provided in this paragraph, or
liabilities associated with the computer. Upon Harrison
completing the necessary transfer documentation as requested by
GAF, GAF will transfer to Harrison for his personal use the mobile
phone number he currently uses and Harrison shall be responsible
thereafter for all costs and fees relating to that
number.
(e) Harrison
acknowledges and agrees that he is waiving his right to, and is not
eligible for, a 2008 bonus under GAF’s Executive Incentive
Compensation Plan. However, GAF agrees to pay him a
discretionary bonus for 2008 performance in the amount of One
hundred eighty thousand dollars ($180,000.00), subject to standard
withholding and payroll deductions, payable no later than
February 28, 2009. This payment shall be transmitted to
Harrison by direct deposit or wire transfer to the account on
record with GAF.
3.
Harrison agrees not to disclose the
contents of this Agreement to anyone except his attorney and/or
financial consultant, if any, his immediate family, and appropriate
governmental agencies which require this information or as required
by law. If disclosure is made to any of the foregoing,
Harrison shall advise each of the non-disclosure requirements of
this Agreement.
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Harrison shall also keep
confidential and not disclose to anyone the circumstances leading
to the execution of this Agreement, subject to the exceptions
specified herein and also subject to his right to discuss such
circumstances (but not the contents of this Agreement) with any
bona fide prospective employers of Harrison or as required by
law. GAF agrees not to disclose the contents of this
Agreement or the circumstances leading to its execution except as
required by law or to its attorneys or other advisers, all of whom
will be advised of the non-disclosure requirements of this
Agreement.
4.
If Harrison discloses the contents
of this Agreement or any other information, the disclosure of which
is prohibited by this Agreement, except as allowed and under the
conditions provided herein, or is otherwise in material breach of
this Agreement or the Agreement Regarding Confidentiality and
Competition dated as of July 10, 1998 by and between GAF and
Harrison, as amended by the Employment Security Agreement dated as
of June 30, 2001 by and between GAF and Harrison (the
“Confidentiality and Competition Agreement”), before
all amounts, benefits or other consideration due under this
Separation Agreement and General Release are provided to him,
GAF’s obligation to make any remaining payments or to provide
any benefit or other consideration to Harrison under the instant
Agreement shall cease. The foregoing is in addition to and
without limiting GAF’s rights to any other remedy it may have
by reason of such a breach.
5.
In consideration for the benefits
and other consideration provided for in this Agreement, Harrison,
on behalf of himself, his heirs, executors, administrators,
successors and assigns, hereby forever releases and discharges GAF,
its parent companies and its and their respective successors,
assigns, subsidiaries, affiliates, directors, officers,
shareholders, representatives, attorneys, insurers, agents and
employees (hereinafter “GAF Releasees”) from any and
all causes of action, claims, losses, damages, costs and/or
expenses (including attorney’s fees) and/or other liabilities
(collectively, “Liabilities”), known or unknown,
asserted or unasserted, which Harrison has or may have, from the
beginning of time to the date of the execution of this Agreement,
including, but not limited to, Liabilities arising under any and
all
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federal, state, or local laws,
regulations, or o
