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 ordinances prohibiting
discrimination in employment on the basis of sex, sexual orientation, race,
age, religion, national origin, mental or physical disability, or any other
form of unlawful discrimination, including but not limited to, Title VII of The
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act
of 1967, as amended; the Older Workers Benefit Protection Act; the Family and
Medical Leave Act; the Americans with Disabilities Act; any accrued benefit
under any other GAF Employee welfare benefit plan as that term is defined by Section 3(1) of
the Employment Retirement Income Security Act; any provision of the
Constitution of the United States, the State of New Jersey, or any other state;
any provision of any other law, common or statutory, of the United States, New
Jersey or any other state, including New Jersey’s Law Against Discrimination (“LAD”),
New Jersey’s Conscientious Employee Protection Act (“CEPA”),  any contract of employment, expressed or
implied; as well as any and all claims alleging wrongful termination, or any
other tortious or wrongful conduct or omission, in any way relating to or
arising out of Harrison’s hiring by GAF, his employment with GAF, or his
separation of employment.  Excepted from
this release is any claim or right which cannot be waived by law, including
workers’ compensation claims and claims arising after the date of this
Agreement.  The Parties intend Harrison’s
release as set forth in this paragraph to be general and comprehensive in
nature and to release all claims and potential claims by Harrison to the
maximum extent permitted by law.


 


Nothing
in this Agreement shall be construed to prohibit Harrison from filing any
future charge or complaint with the EEOC or participating in any investigation
or proceeding conducted by the EEOC, nor shall any provision of this Agreement
adversely affect Harrison’s right to engage in such conduct.  Notwithstanding the foregoing, Harrison
waives the right to obtain any relief from the EEOC or to recover any monies or
compensation as a result of filing a charge or complaint.


 


6.             Harrison acknowledges that the only
consideration for signing this Agreement and all that he is ever to receive
from Releasees are expressed in the terms stated in this Agreement and that no
other promises or agreements of any kind have been made to Harrison by any
person or entity whatsoever to cause him to sign this Agreement, and that
Harrison has signed this Agreement 


 


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as a free and voluntary act. 
Harrison further acknowledges that pursuant to the terms of this
Agreement, he is and will be receiving pay, benefits, and other consideration
from GAF which are substantially above and beyond the pay, benefits, or other
consideration to which he, in the absence of this Agreement, would be
entitled.  Harrison further acknowledges
that GAF is providing the payments, benefits, and other consideration set forth
in this Agreement by Harrison’s promises, including the full and comprehensive
release provided in Paragraph 5.  Except
as expressly stated in this Agreement, Harrison shall not receive any other
pay, benefits, or consideration from GAF including any severance pay under GAF’s
Severance Pay Plan for Salaried Employees.  Notwithstanding the foregoing, Harrison’s
rights and obligations with respect to any Long Term Incentive Units shall be
governed by the applicable Long Term Incentive Unit Plan based on his
Separation Date.   Any future vesting of
previously granted but unvested units shall cease on the Separation Date, and
Harrison shall have ninety (90) days to exercise any units vested as of that
date.


 


7.             Harrison hereby waives any and all rights or claims that he may have to
reinstatement, employment or reemployment with GAF.


 


8.             Harrison agrees that this Agreement shall not
be offered, used or considered as evidence in any proceeding against GAF except
to the extent necessary to enforce the terms of this Agreement.  GAF agrees that this Agreement shall not be
offered, used or considered as evidence in any proceeding against Harrison
except to the extent necessary to enforce the terms of this Agreement.


 


9.             This Agreement is not, and shall not, be
construed as an admission by GAF or Harrison of any acts or omissions that
could or might be alleged with respect to any matter concerning Harrison’s
employment or separation of employment with GAF.  Without limiting the foregoing, this
Agreement is not, and shall not be, construed as an admission by GAF of (i) any
violation of any law, regulation, or ordinance; or (ii) any wrongful act
toward Harrison; or (iii) any


 


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liability whatsoever for any
damages or injuries that are or could be claimed by him with respect to his
hiring by GAF, his employment, or the separation of his employment.


 


10.           Harrison represents and warrants that he has
not filed or otherwise initiated any proceeding, complaint, charge, or lawsuit
with any court, government agency, or other entity relating to any claims being
released by him under this Agreement.  In
addition to agreeing herein not to bring suit against GAF, Harrison agrees to
not file a claim or charge with any state or governmental agency wherein he
seeks damages from GAF.


 


11.  After the Separation Date,
upon reasonable notice and without any additional consideration except for
reimbursement of authorized expenses, Harrison agrees to cooperate with GAF and
to meet with GAF representatives in connection with any legal matter in which
Harrison may potentially be called as a witness for GAF.  The foregoing does not create any employment
relationship between him and GAF.  GAF
agrees that it will reimburse Harrison for his time in this regard at One
thousand five hundred dollars ($1,500.00) per day and for any expenses incurred
by him at GAF’s request in connection with his cooperation as provided herein,
provided Harrison submits appropriate and supporting documentation to GAF in a
reasonable and timely manner.  GAF agrees
to cooperate with Harrison to minimize any disruption to Harrison caused by his
cooperation with GAF in such matters as provided herein.


 


12.           Harrison agrees not to make any defamatory or
derogatory statement, written or verbal, to any third parties regarding the
facts or circumstances surrounding this Agreement or any other defamatory or
derogatory statement that may be harmful to GAF or may be injurious to the
goodwill, reputation or business standing of GAF.   GAF agrees not to make any defamatory or
derogatory statement, written or verbal, to any third parties regarding the
facts or circumstances surrounding this Agreement or any other defamatory or
derogatory statement that may be harmful to Harrison or may be injurious to the
goodwill, reputation or business standing of Harrison.  GAF agrees, in response to any and all
inquiries regarding Harrson’s work under the Consulting 


 


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Agreement and/or his previous employment with GAF, to provide Harrison’s
dates of employment and work under the Consulting Agreement, his job title as an
employee of GAF, and a statement that only this information is provided
regarding all GAF employees pursuant to corporate practice.


 


13.           If any one or more of the provisions
contained herein shall for any reason be held to be unenforceable in any
respect under the law of any state or of the United States of America, such
unenforceability shall not affect any other provision of this Agreement, and
said provision shall be ineffective, to the extent of such unenforceability,
with respect only to that jurisdiction holding the provision to be
unenforceable.


 


14.           Any controversy or claim arising from or related
to this Agreement or the breach thereof shall be settled by final and binding
arbitration by a single arbitrator in an arbitration administered by the
American Arbitration Association in Passaic County, New Jersey, in accordance
with the Expedited Procedures of its Commercial Arbitration Rules, and judgment
on the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.


 


15.           Harrison and GAF hereby consent and submit to the exclusive
jurisdiction of the Federal and state courts located in the State of New Jersey
with regard to any and all disputes arising from or related to Sections 3 or 4
of this Agreement.  Harrison and GAF
waive any objection to personal jurisdiction in New Jersey and any objection
that those courts are inconvenient forums to hear such disputes. Each of
Harrison and GAF hereby consent and agree that service of process by the other
party shall be deemed validly and properly affected against 


 


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them upon the mailing of a copy of such process by certified mail,
postage prepaid, to them at their addresses as provided below or as hereafter
provided to the other party in writing.


 


If to Harrison:


Mr. David A. Harrison


14 Elm Street


Denville, NJ 07834


 


If to GAF:


 


GAF Building Materials Corporation


Chief Executive Officer


1361 Alps Road


Wayne, NJ 07470


 


With a copy to:


GAF Building Materials Corporation


Office of the General Counsel


1361 Alps Road


Wayne, NJ 07470


 


16.           This Agreement contains the entire agreement
between Harrison and GAF and fully supersedes any and all prior agreements,
with the exception of the Confidentiality and Competition Agreement, which
shall continue in full force and effect under its terms, or understandings
pertaining to the subject matter hereof. 
Harrison represents and acknowledges that in executing this Agreement he
has not relied upon any representation or statement not set forth herein, made
by any of the Releasees or by any of the Releasees’ agents, representatives, or
attorneys with regard to the 


 


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subject matter of this Agreement. 
No other promise or agreement shall be binding unless in writing and
signed by the Parties hereto.


 


17.           All references to GAF in this Agreement include:
(a) any affiliated, related, subsidiaries, or parent companies of Building
Materials Corporation of America; (b) any past or present officers,
directors, shareholders, attorneys, insurers, agents, representatives, and/or
employees of GAF and or its parents, subsidiaries, affiliates and related
companies; and (c) any and all respective predecessors, successors and
assigns, and any and all benefit plans, of GAF and/or its affiliated companies
(as well as the past or present officers, directors, shareholders, agents,
representatives, and employees of such entity).


 


18.           Harrison acknowledges that he has been
advised by GAF of his right to consult an attorney before signing this
Agreement, and that he has been provided at least twenty-one (21) days after the
date he received this document to consider the Agreement.  Harrison also understands that he may sign
the Agreement prior to that date. 
Harrison further understands that he may revoke and repudiate this
Agreement within seven (7) days after signing it by delivering written
notification to Scott C. Carroll, Vice President Employment & Labor
Law, GAF Materials Corporation, 1361 Alps Road, Building 8/2, Wayne, New Jersey
07470 and Harrison understands that this Agreement shall not become effective
or enforceable until the seven (7) day revocation period has expired.  Should Harrison revoke and repudiate this
Agreement during the foregoing seven (7) day period, he shall be required
to return or repay the value of any consideration under this Agreement he already
received, except if he challenges the validity of the waiver and release
agreement under the Age Discrimination in Employment Act.


 


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19.           BY SIGNING
THIS SEPARATION AGREEMENT AND GENERAL RELEASE, HARRISON STATES THAT:


 


(a)        HE HAS READ IT;


(b)        HE UNDERSTANDS AND KNOWS THAT HE IS GIVING UP
CERTAIN RIGHTS;


(c)        HE AGREES WITH EVERYTHING IN IT;


(d)        HE IS AWARE OF HIS RIGHT TO CONSULT AN
ATTORNEY BEFORE SIGNING IT; AND


(e)        HE HAS SIGNED IT KNOWINGLY AND VOLUNTARILY.


 


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed.


 


 


	
   

  	
   

  	
  Building Materials Corporation of America

  
	
   

  	
   

  	
   

  
	
  WITNESSED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Scott Carroll

  	
   

  	
  By:

  	
  /s/ Robert B. Tafaro

  
	
   

  	
   

  	
   Robert B. Tafaro

  
	
   

  	
   

  	
   President and CEO

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  1/30/09

  	
   

  	
  Date:

  	
  1/30/09

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESSED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Victoria Gormley

  	
   

  	
  By:

  	
  /s/ David A. Harrison

  
	
   

  	
   

  	
   David A. Harrison

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  1/30/09

  	
   

  	
  Date:

  	
  1/30/09

  
						



 


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CONSULTING AGREEMENT


 


[See Exhibit 10.39 to this Form 10-K]


 


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