EXHIBIT 10.1
------------
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of August 9, 2007,
by and between GAF Materials Corporation (the "Company") and Xxxxxxx X. Xxxxx
(the "Employee").
W I T N E S S E T H:
WHEREAS, Employee and the Company desire to enter into this Agreement,
on the terms and conditions set forth below, to provide for the employment of
Employee for the term herein specified; and
WHEREAS, Employee has been employed by the Company since the
consummation of its merger with ElkCorp; and
WHEREAS, Employee was a key employee while employed by ElkCorp and
Company, as the new employer, desires to retain Employee as a key employee under
the terms and conditions set forth in this Agreement; and
WHEREAS, the Company views the continued employment of Employee for the
duration contemplated herein to be an essential component of the future success
of the merged business; and
WHEREAS, the Company, through it's merger with ElkCorp, is a successor
to Elcor Corporation with respect to the June 1, 2001 Executive Officer Change
in Control Agreement ("CIC Agreement") entered into by and between Elcor
Corporation and Employee; and
WHEREAS, the Company and Employee agree that this Employment Agreement
supersedes and replaces the terms and conditions of the CIC Agreement except as
expressly stated in this Agreement, and the CIC Agreement shall be null and
void; and
WHEREAS, this Employment Agreement provides for a term of employment
that extends beyond the term of the CIC Agreement; and
WHEREAS, in exchange for Employee's execution of this Agreement,
Company shall provide Employee with continued employment under the terms and
conditions set forth in this Agreement and shall provide Employee with access to
confidential and proprietary Company information; and
WHEREAS, Employee's execution of the Agreement Regarding
Confidentiality and Competition attached as Exhibit A and the Agreement to
Arbitrate Employment Disputes attached as Exhibit B is a condition precedent to
the effectiveness of this Agreement; and
NOW, THEREFORE, in consideration of the above-stated premises, the
mutual promises herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1
1. CIC Agreement. The Company and Employee agree that the CIC
Agreement shall be null and void except as expressly set forth in this
Employment Agreement and that the Employment Agreement fully supersedes and
replaces the CIC Agreement except as expressly set forth herein. Further, the
Company agrees to indemnify and hold harmless Employee from and against any
claim, cause of action, liability or other damage arising out of or relating to
any claim by the Internal Revenue Service that this Employment Agreement,
including the indemnification obligation set forth in this Paragraph 1, results
in payments or distributions to Employee by the Company to or for the benefit of
Employee that would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties incurred by Employee with respect to such
excise tax.
2. Employment. During the term of this Agreement, the Company
shall employ Employee and Employee agrees to be employed by the Company as its
Executive Vice President - Chief Operating Officer, subject to the terms and
conditions set forth in this Agreement.
3. Term Of Agreement. The term of this Agreement shall commence
on the date Employee executes this Agreement and shall continue until the close
of business on June 30, 2009, unless earlier terminated as provided in Paragraph
11 (the "Term of Employment").
4. Duties. During the Term of Employment, Employee shall report
to the President and Chief Executive Officer of the Company. Employee shall be
based in Dallas, Texas and shall perform his duties primarily in Dallas, Texas
and at such other locations, for travel and meetings, as may be reasonably
requested by the Company in the normal course of business. The Employee shall
fulfill all the reasonable management and leadership duties of the senior
managerial position of Executive Vice President - Chief Operating Officer and
shall be responsible generally for: (i) developing, driving, and overseeing the
growth, integration and strategic initiatives for residential roofing, including
achievement of objectives pursuant to the Synergy Plan; (ii) providing strategic
advice to senior management regarding the foregoing; (iii) developing the talent
of residential roofing manufacturing Directors; and (iv) performing other duties
as may be requested of him which befit an individual of Employee's position,
skills, credentials, and experience. The Employee agrees to devote all his
business energy, attention, skill and working time as reasonably expected for an
employee of his personnel grade and level to performing his duties and to
promoting the Company's interests and he shall at all times perform his duties
and obligations loyally, conscientiously and to the best of his abilities in a
professional and workmanlike manner and according to the highest standards of
the industry.
5. Compensation. As compensation for the services rendered by the
Employee during the Term of Employment, the Company agrees to pay to the
Employee, and the Employee agrees to accept, a fixed base salary of $504,400.00
per annum, payable in accordance with the Company's normal payroll practices. On
July 1 of each year during the Term, Employee shall receive a salary increase
equal to 4% of his annual base salary at that time.
6. Sign-On Bonus: The Company shall pay Employee a sign on bonus
equal to $1,000,000.00 (subject to normal payroll practices), payable 30 days
after his execution of this Employment Agreement.
2
7. Interim Stay Bonuses: On the first payroll period after
February 1, 2008, Employee shall receive a one-time payment of $400,000.00
(subject to normal payroll practices) in exchange for remaining an employee
through said date. On the first payroll period after June 30, 2008, Employee
will be entitled to an additional one-time payment of $900,000.00, (subject to
normal payroll practices) in exchange for remaining an employee through June 30,
2008. On the first payroll period after June 30, 2009, Employee will be entitled
to an additional one-time payment of $400,000.00, (subject to normal payroll
practices) in exchange for remaining an employee through June 30, 2009.
8. Discretionary Bonus. Employee shall be eligible for a
discretionary bonus payable on or about June 30, 2008 in the amount of
$450,000.00, provided he achieves the SGA, Manufacturing and Logistics
objectives set forth in the Synergy Plan. Employee shall not be eligible for any
other bonuses (e.g., EIC Bonus) for performance during the period between now
and June 30.2008, except as expressly set forth in this Agreement.
9. Long Term Incentive Units. Upon Employee's execution of this
Agreement, the Company shall grant Employee 5,000 long term incentive units
pursuant to the 2001 BMCA Long Term Incentive Plan, as amended. 35% of these
5,000 units shall vest on June 30, 2008 and the remaining 65% shall vest on June
30, 2009. Except as expressly set forth in this Paragraph 9, Employee's rights
and obligations regarding these units shall be governed by the applicable Long
Term Incentive Plan.
10. Benefits. Employee's benefits shall be the same benefits as
would otherwise be required under the CIC Agreement.
11. Termination Of Employment. The Employee's employment pursuant
to this Agreement shall automatically be terminated upon the "Death" or
"Disability" (as defined in the CIC Agreement) of the Employee and shall be
immediately terminated at any time by the Company for "Cause" (as defined in the
CIC Agreement). If Employee's employment is terminated as provided in this
Paragraph 11, the Company shall have no further liability or obligation to
Employee under this Agreement except as expressly stated in this Employment
Agreement.
12. Severance Pay.
(a) During the Term of Employment, if the Company terminates
Employee's employment for reasons other than those set forth in Paragraph 11 of
this Agreement, the Company shall continue to pay Employee his base salary (as
set forth in Paragraph 5) for the period remaining in the Term of Employment.
Employee shall also be entitled to payment of Severance Pay under paragraph
12(c). During the Term of Employment, if the Company terminates Employee's
employment for the reasons set forth in Paragraph 11, then the Company shall
have no obligation to continue to pay Employee his base salary (as set forth in
Paragraph 5) or other payments, benefits or consideration under this Employment
Agreement for the period remaining in the Term of Employment, but Employee shall
be entitled to payment of Severance Pay under paragraph 12(c).
3
(b) If Employee voluntarily terminates his employment with the
Company during the Term of Employment, then beginning on the date of such
termination of employment, Employee shall not be entitled to any continuing
salary payments, benefits or other payments whatsoever under this Agreement,
except for eligibility for COBRA continuation coverage as governed by the
Consolidated Omnibus Budget Reconciliation Act.
(c) During the Term of Employment, if the Company terminates
Employee's employment for any reason, including death, disability, or for cause,
he shall receive severance pay as follows:
(i) For the period commencing the date of execution of Employment
Agreement to January 31, 2008: Employee shall receive
severance pay equal to $1,654,840.00 representing 1.1 times
his current annual compensation including sign-on bonus if his
employment is terminated for any reason other than voluntary
resignation during this period.
(ii) For the period February 1, 2008 through June 30, 2008:
Employee shall receive $1,311,440.00 representing 2.6 times
his then current annual compensation excluding bonuses if his
employment is terminated for any reason other than voluntary
resignation during this period.
(iii) For the period July 1, 2008 through January 31, 2009: Employee
shall receive $419,660.00 representing 0.80 times his then
current annual compensation excluding bonuses if his
employment is terminated for any reason other than voluntary
resignation during this period.
(iv) After January 31, 2009, Employee shall no longer be eligible
for any severance pay or severance benefits.
The severance payments set forth in this Paragraph 12(c) shall be in lieu of the
Normal Severance Pay and Enhanced Severance Pay otherwise provided in GAFMC's
Severance Pay Plan for Full-Time Salaried Employees. Employee's receipt of
severance pay as set forth in this Paragraph 12(c) shall be subject to
Employee's execution (without revocation) of the Company's standard Separation
Agreement and General Release and subject to GAFMC's Severance Pay Plan for
Full-Time Salaried Employees in all other respects, including execution of a
general release in the form provided by the Company.
(d) The severance pay provisions set forth in this Paragraph 12
fully supersede any other agreements or understandings regarding severance pay
and except as expressly set forth in this Agreement, Employee shall not be
entitled to any other severance or post-termination pay.
13. General Release. In consideration for the payments, benefits,
and other consideration provided for herein, Employee, on behalf of himself, his
heirs, executors, administrators, successors and assigns, hereby forever
releases and discharges GAFMC, ElkCorp, its and their respective parent
companies, successors, assigns, subsidiaries, affiliates, directors, officers,
shareholders, representatives, attorneys, insurers, agents and employees
(hereinafter "Releasees") from any and all causes of action, claims, losses,
damages, costs and/or expenses (including attorney's fees) and/or other
4
liabilities (collectively, "Liabilities"), known or unknown, asserted or
unasserted, which Employee 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 the laws, regulations, or ordinances of any and all
countries, including the United States and any and all states or localities
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 Family and Medical
Leave Act; the Americans with Disabilities Act; any accrued benefit under any
other GAFMC 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 States of New Jersey and Texas, or any
other state or country; any provision of any other law, common or statutory, of
the United States, New Jersey, Texas or any other state or country, including
New Jersey's Law Against Discrimination ("LAD") and New Jersey's Conscientious
Employee Protection Act ("CEPA") and Texas' Labor Code and/or the Texas Human
Rights Act; 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 Employee's hiring
by GAFMC, his employment with GAFMC or his separation of employment. Excepted
from this release is any claim or right which cannot be waived by law, including
claims arising after the effective date of this Agreement. The Parties intend
Employee's release as set forth in this Paragraph 13 to be general and
comprehensive in nature and to release all claims and potential claims by
Employee to the maximum extent permitted by law.
14. Confidentiality and Non-Competition. Xxxxx will sign the
Company's Agreement Regarding Confidentiality and Competition under which, among
other things, he agrees not to compete with the Company and its affiliates in
the roofing business by accepting employment with or providing consulting
services to any manufacturer that competes with the Company or any of its
affiliates during the Term of Employment and for a two-year period commencing
July 1, 2009 through June 30, 2011, in consideration of which the Company shall
pay Xxxxx $180,000.00 at the rate of $7,500.00 per month. Xxxxx'x execution of
the Company's Agreement Regarding Confidentiality and Competition is a condition
precedent to the effectiveness of this Employment Agreement.
15. Consulting Agreement. The Company agrees to enter a Consulting
Agreement with Employee after the expiration of the Term of this Employment
Agreement on the terms and conditions generally outlined herein:
(i) From July 1, 2009 through June 30, 2010 (the
"Consulting Term"), Employee would provide consulting
services to Company, provided that both Employee and the
Company would have the right to terminate the Consulting
Term at any time, for any reason upon not less than 90
days prior written notice to the other party.
(ii) During the Consulting Term, Employee would not be
required to travel outside the city limits of Dallas,
Texas without reasonable prior notice and Employee's
prior consent, and would be available to provide
consulting services including continuing to assist in
integration issues, ensuring the smooth and orderly
5
transition on his duties and responsibilities to his
successor, develop and mentor his successor, consult on
other matters regarding the continued growth and
development of the business. During the Consulting Term,
Employee would be reimbursed for all reasonable business
expenses incurred in connection with performing his
consulting services.
(iii) Company shall pay Employee a consulting fee equal
to $20,000.00 per month (for which Company will issue an
IRS Form 1099).
(iv) The Company shall use its standard Consulting
Agreement.
16. Entire Agreement. This Agreement, including all attached
exhibits, contains the entire agreement of the parties with respect to the
subject matter hereof and Employee has not relied upon any representations or
statements not set forth herein. This Agreement fully supersedes any and all
prior agreements or understandings, if any, except as expressly provided in this
Agreement, pertaining to Employee's employment or termination thereof. No other
promise or agreement shall be binding unless in writing and signed by the
Parties hereto.
17. Assignment. This Agreement may be transferred or assigned by
the Company without the prior written consent of the Employee, provided that any
such assignment shall not release the Company from its obligations hereunder.
The Employee acknowledges that his services are personal in nature and that this
Agreement may not be transferred or assigned by Employee in whole or in part.
18. Caption/Headings. The caption headings in this Employment
Agreement are for convenience and reference only, are not intended to be a part
of this Employment Agreement and shall not be construed to define, modify, alter
or describe the scope or intent of any of the terms, covenants, or conditions of
this Employment Agreement.
19. Amendment Or Alteration; Governing Law; Severability. No
amendment or alteration of the terms of this Agreement shall be valid unless
made in writing and signed by both of the parties. This Agreement shall be
governed by the internal laws of the State of New Jersey, without regard to such
State's principles of conflicts of laws. The holding of any provision of this
Agreement to be illegal, invalid or unenforceable by a court of competent
jurisdiction shall not affect any other provision of this Agreement, which shall
remain in full force and effect.
6
20. Notices. All notices hereunder shall be in writing and shall
be personally delivered or sent by reputable overnight courier, all costs
prepaid, to the parties at the respective notice addresses identified below, or
as such addresses may be changed in writing pursuant to this Paragraph 20.
Notice Addresses:
GAF Materials Corporation Xxxxxxx X. Xxxxx
0000 Xxxx Xxxx 000 Xxx Xxxxx
Xxxxxxxx 0 Xxxxxxxxxx, XX 00000
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
President and CEO
21. Disputes. Employee and the Company agree to make a diligent,
good faith attempt to resolve any and all disputes that may arise over the terms
of this Agreement or any other disputes that may arise between the Company and
Employee relating to the Employee's hiring, employment and separation of
employment, or events occurring thereafter relating to his employment.
Unresolved disputes shall be subject to the Agreement to Arbitrate Disputes
signed as a condition precedent to this Employment Agreement. Excepted from this
Paragraph 21 are any disputes arising from a violation by Employee of his
obligations pursuant to the Agreement Regarding Confidentiality and Competition
or any other dispute for which the Company seeks a court injunction against
Employee.
IN WITNESS WHEREOF, the Parties have signed this Agreement on the dates
set forth.
WITNESSED: GAF Materials Corporation
By: /Xxxxxx X. Xxxxxx/
------------------------------------ -------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
Date: Date: August 13, 2007
------------------------------- ------------------
/Xxxxxx Xxxx Xxx/ /Xxxxxxx X. Xxxxx/
------------------------------------ ------------------
Xxxxxxx X. Xxxxx
Date: August 9, 2007 Date: August 9, 2007
------------------------------- ------------------
7
EXHIBIT A
AGREEMENT TO ARBITRATE DISPUTES
I recognize that certain events may ultimately lead to my leaving GAF Materials
Corporation, ElkCorp and/or its and their respective subsidiaries or affiliates
(collectively the "Company") and, at that time, disputes may arise between the
Company and me relating to my hiring, employment or separation of employment by
the Company or events occurring thereafter relating to my employment. I
understand and agree that by entering into this Agreement to Arbitrate Disputes
("Agreement"), I anticipate gaining the benefits of a speedy, simple, and
impartial dispute resolution procedure. The mutual promises by the Company and
me to arbitrate, rather than to litigate claims, and my employment or continued
employment by the Company pursuant to the August 2007 Employment Agreement are
consideration for this Agreement.
CLAIMS COVERED BY THIS AGREEMENT
--------------------------------
The Company and I mutually agree to the resolution, by final and binding
arbitration, of all claims relating to my employment by the Company that the
Company may have against me, or that I may have against the Company and/or its
shareholders, officers, directors, employees or agents, following the
termination of my employment. Such claims include, without limitation, claims
for wages or salary, severance or other compensation; claims for breach of any
contract or covenant (express or implied); claims for violation of any
whistle-blower protections, claims under New Jersey's Conscientious Employee
Protection Act ("CEPA"); tort claims; claims for any type of discrimination
(race, gender, sexual harassment, sexual orientation, religion, national origin,
age, marital status, or medical condition, handicap or disability); claims for
benefits (except where any employee benefit or pension plan specifies a
different procedure for resolving claims); and claims for violation of any
federal statute (Age Discrimination in Employment Act, the Americans with
Disabilities Act, Civil Rights Act of 1964, Civil Rights Act of 1991, Employee
Retirement Income Security Act of 1974, Family Medical Leave Act of 1993, Older
Worker Benefit Protection Act, Pregnancy Discrimination Act of 1978)), state, or
other governmental law, statute, regulation, or ordinance, claims under New
Jersey's Law Against Discrimination, Texas' Labor Code and/or the Texas Human
Rights Act (collectively referred to as "Claims"); but excluding claims for
worker's compensation, unemployment benefits, claims which are filed with any
state and/or federal agencies, or lawsuits seeking requests for injunctive or
equitable relief in connection with the enforcement of any agreements between
the Company and me which seek to prohibit me from disclosing the Company's
confidential or proprietary information and/or prohibit me from competing with
the Company or to compel arbitration of the Claims.
ARBITRATION PROCEDURES
----------------------
Written notice of any Claims must be given no later than the applicable statute
of limitations for the cause of action alleged. Written notice to the Company
shall be sent to the Company's General Counsel in Wayne, New Jersey. Written
notice to the Employee shall be sent to his last known address.
8
The Company and I agree that any arbitration shall be in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA") in effect at the time of the hearing (a current
copy of those rules is available through the Law Department). The arbitration
shall be before one neutral arbitrator selected from the Regional Employment
Dispute Resolution Roster. The arbitration shall take place in the city nearest
to my last place of employment with the Company.
All fees and expenses of the arbitrator shall be borne by the Company. The
arbitrator shall determine my rights and obligations and those of the Company
according to the applicable substantive laws. Notwithstanding the foregoing, in
rendering the award, the arbitrator will have no authority to award punitive
damages in excess of Twenty-Five Thousand ($25,000) Dollars unless such a
limitation is prohibited by applicable law. The Company and I shall each bear
the expenses of our own counsel, experts, witnesses, preparation, and
presentation of proofs, unless otherwise awarded by the arbitrator; however, any
such award shall not exceed Twenty-Five Thousand ($25,000) Dollars unless such a
limitation is prohibited by applicable law. Judgment on the award rendered in
arbitration may be entered in any court having jurisdiction.
KNOWING AND VOLUNTARY WAIVER OF RIGHTS
--------------------------------------
BY SIGNING THIS AGREEMENT, I UNDERSTAND THAT CERTAIN EVENTS MAY LEAD TO MY
LEAVING THE COMPANY AND THAT I AM WAIVING MY RIGHTS TO COMMENCE THEREAFTER A
LAWSUIT IN ANY COURT REGARDING ANY CLAIMS WHICH I MAY HAVE AGAINST THE COMPANY
AND/OR ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS RELATING TO MY
EMPLOYMENT BY THE COMPANY. I HAVE THE RIGHT TO CONSULT AN ATTORNEY BEFORE
SIGNING THIS AGREEMENT. ANY QUESTIONS REGARDING THIS AGREEMENT SHOULD BE
DIRECTED TO THE COMPANY'S LAW DEPARTMENT.
9
GENERAL
-------
The provisions of this Agreement are severable, the invalidity or
unenforceability of any provision shall not affect application of any other
provision. When possible, consistent with the purpose of this Agreement, any
invalid provision of this Agreement may be reformed, and as reformed, enforced.
This Agreement can be revoked or modified only by written agreement signed by me
and the Company.
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the state where I am employed and any action to enforce
any rights hereunder may only be commenced and prosecuted in a court of
competent jurisdiction in that state.
This Agreement supersedes all prior agreements dealing with any of the subject
matter of this Agreement.
/Xxxxxxx X. Xxxxx/ /Xxxxxx X. Xxxxxx/
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxx GAF Materials Corporation
August 9, 2007 Xxxxxx Xxxxxx
----------------------------------- -------------------------------
Date Print Name
President and CEO
-------------------------------
Title
August 13, 2007
-------------------------------
Date
10
EXHIBIT B
AGREEMENT REGARDING CONFIDENTIALITY AND COMPETITION
In consideration of my employment pursuant to the August 2007
Employment Agreement and my access to and receipt of Confidential Information as
described below, or such other good and valuable consideration by GAF Materials
Corporation, ElkCorp, GAF-ELK Corporation and its and their respective
subsidiaries and affiliates (collectively "GAFMC"), I agree to the terms and
conditions in this Agreement.
1. Confidential Information. I will not, without GAFMC's prior written
permission, directly or indirectly utilize for any purpose other than
performance of my employment duties to GAFMC, or disclose to anyone outside of
GAFMC, either during or after my employment with GAFMC, any information provided
to or obtained by me in the course of my employment with GAFMC, trade secrets or
other confidential information of GAFMC, or any information received by GAFMC in
confidence from or about third parties, as long as such matters remain trade
secrets or confidential. Trade secrets and other confidential information shall
include any information or material which is not generally known to the public,
and which (a) is generated or collected by or utilized in the operations of
GAFMC and relates to the actual or anticipated business or research or
development of GAFMC or GAFMC's actual or prospective vendors, customers or
clients; or (b) is suggested by or results from any task assigned to me by GAFMC
or work performed by me for or on behalf of GAFMC or any customer or client of
GAFMC. Confidential information shall not be considered generally known to the
public if revealed improperly to the public by me or others without GAFMC's
express written consent and/or in violation of an obligation of confidentiality
to GAFMC. Examples of confidential information include, but are not limited to,
customer and supplier identification and contacts, business relationships,
contract provisions, pricing, margins, business plans, marketing plans,
financial data, business and customer strategies, techniques, technical
know-how, formulae, research, development, technological and production
information, processes, designs, architecture, prototypes, models, software,
solutions, discussion guides, personal or performance information about
employees, research and development, patent applications and plans or proposals
related to the foregoing. The confidentiality obligations herein shall not
prohibit me from divulging confidential information or trade secrets by order of
court or agency of competent jurisdiction or as required by law; however, I
shall promptly inform GAFMC of any such situations and shall take reasonable
steps to prevent disclosure of confidential information or trade secrets until
GAFMC has been informed of such required disclosure and has had a reasonable
opportunity to seek a protective order.
2. Non-Competition. GAFMC does not intend to interfere with any former
employee's employment opportunities unless there is a conflict with GAFMC's
legitimate business interests. In order to help protect those interests, during
the Term of Employment set forth in the Employment Agreement by and between me
and GAFMC and for twenty-four (24) months (the "Restricted Period") after the
expiration of such Term of Employment, I agree not to become engaged, directly
or indirectly, as an employee, consultant, or otherwise for any Competitive
Organization in any management, executive, sales and marketing, research and
development or operations position. I may accept such an engagement with a
Competitive Organization if: (i) it is diversified and has well-established,
pre-existing, separate and distinct divisions, (ii) I am involved only in that
11
part of the business which is not a Competitive Organization, and (iii) prior to
my accepting such an engagement, in any capacity, the Competitive Organization
provides GAFMC with written assurances, satisfactory to GAFMC, that I will not,
and the Competitive Organization will not cause me to, render services directly
or indirectly in connection with any Competitive Product. The running of the
Restricted Period shall be stopped or tolled for any period of time following
the termination of my GAFMC employment during which I compete with GAFMC in
violation of this paragraph 2.
(ii) "Competitive Product" means: any product(s) or service(s) offered
by GAFMC at the time my employment relationship terminates or with which I had
substantial involvement at any time during the twenty-four (24) months
immediately preceding my last day of employment by GAFMC; and
(iii)"Competitive Organization" means: any person(s),
organization(s),or entity(ies)which is/are a distributor, manufacturer or
formulator of a Competitive Product.
3. Conduct Regarding GAFMC Employees. For twelve (12) months after
termination, I will not, directly or indirectly, attempt to hire, engage the
services of, or employ in any manner any person who is then an GAFMC executive,
management, sales and marketing, operations, engineering, or research and
development employee.
4. Assignment of Developments. I hereby assign to GAFMC my entire
right, title and interest in any idea, formula, invention, discovery, design,
drawing, process, method, technique, device, improvement, computer program and
related documentation, technical and non-technical data, work of authorship and
patent and patent applications (all hereinafter called "Developments"), which I
may solely or jointly conceive, write or acquire in whole or in part during the
period I am employed by GAFMC, and for six (6) months thereafter, which relate
in any way to the actual or anticipated business or technology or research or
development of GAFMC for which I had access or responsibility during my
employment at GAFMC, or which are suggested by or result from any task assigned
to me or work performed by me for or on behalf of GAFMC, whether or not such
Developments are made, conceived, written or acquired during normal hours of
work or using GAFMC's facilities, and whether or not such Developments are
patentable, copyrightable or susceptible to other forms of protection. This
assignment does not apply to any Development for which no equipment, supplies,
facilities or trade secret, proprietary or confidential information of GAF was
used, and which was developed entirely on my own time unless (a) the development
relates (i) to the actual or anticipated business of GAFMC, for which I had
access or responsibility during my employment at GAFMC, or (ii) to GAFMC's
actual or demonstrably anticipated research or development, for which I had
access or responsibility during my employment at GAFMC or (b) the Development
results from any work performed by me for GAFMC. I agree all rights in any
Developments created during my employment at GAFMC belong to GAFMC.
5. Remedies. Any breach or threatened breach of this Agreement will
irreparably injure GAFMC, and money damages will not be an adequate remedy.
Accordingly, GAFMC may obtain and enforce an injunction prohibiting me from
violating or threatening to violate this Agreement. This is not GAFMC's only
remedy, it is in addition to any other remedy available.
12
6. Choice of Law and Forum: Submission to Jurisdiction. The
construction, interpretation and performance of this Agreement shall be governed
by, and in accordance with, the laws of the State of New Jersey, and any action
or proceeding arising from or related to this Agreement shall be commenced,
prosecuted and maintained only in the State of New Jersey. I hereby consent to
the personal jurisdiction of the state and federal courts located in New Jersey
with respect to all actions and proceedings of the type described in the
immediately preceding sentence.
7. Advice. I have the right to consult an attorney before signing this
Agreement.
8. General. Each of the provisions of this Agreement shall be binding
on me after my employment terminates, regardless of the reason(s) for
termination.
This Agreement supersedes all prior agreements dealing with any of the
subject matter of this Agreement and can be revoked or modified only by a
written agreement signed by me and GAFMC.
The provisions of this agreement are severable, and the invalidity or
unenforceability of any provision shall not affect application of any other
provision. When possible, consistent with the purpose of this Agreement, any
invalid provision of this Agreement may be reformed, and as reformed, enforced.
GAFMC may assign its rights under this Agreement.
/Xxxxxxx X. Xxxxx/ /Xxxxxx X. Xxxxxx/
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxx GAF Materials Corporation
August 9, 2007 By: Xxxxxx Xxxxxx
----------------------------------- ---------------------------
Date Title: President and CEO
------------------------
August 13, 2007
-------------------------------
Date
13
