Exhibit 10.23
EMPLOYMENT SECURITY AGREEMENT
This employment Security Agreement (the "Agreement") is entered into as of
the 30 day of June 2001, by and between Building Materials Corporation of
America, a Delaware corporation with its executive offices located at 0000 Xxxx
Xxxx, Xxxxx, Xxx Xxxxxx 00000 (the "Employer"), and Xxxxx Xxxxxxxx residing at
_______________________________________ (the "Executive").
WITNESSETH
WHEREAS, the Executive is currently employed by the Employer as its Senior
Vice President Marketing, Contractor Services & Corporate Development; and
WHEREAS, the Employer desires to attract and retain well-qualified
executives and key personnel and to provide certain security to both itself and
the Executive of continuity of management in the event of a change in control of
the Employer; and
WHEREAS, the Executive and the Employer desire to enter into this
Agreement, which sets forth the terms of the security the Employer is providing
the Executive with respect to his employment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
l. Definitions. For purposes of this Agreement the following definitions
shall apply:
(a) "Base Salary" means the higher of the Executive's annual base salary at
the rate in effect on either the date of a Change in Control or the date of the
Executive's termination of employment.
(b) "Bonus" means the average payment made to the Executive under any bonus
plan of the Employer for the three fu11 fiscal years of the Employer preceding
the date of the Change in Control, or for such shorter period that the Executive
has been employed by the Employer. If the Executive has not been employed by the
Employer for a sufficient length of time for a bonus to be payable, "Bonus"
shall mean the average target bonus for which the Executive would have been
eligible or, in the absence of any such target, 50% of the Executive's Base
Salary.
(c) "Cause" shall be deemed to exist only if:
(1) The Executive engages in acts or omissions constituting
dishonesty in the capacity of his employment with the Employer,
an intentional breach of fiduciary obligation or an intentional
wrongdoing or malfeasance;
(2) The Executive is convicted of a criminal violation involving
fraud or dishonesty; or
(3) The Executive materially breaches this Agreement (other than by
engaging in acts or omissions enumerated in paragraphs (1) and
(2)
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above), or materially fails to satisfy the conditions and
requirements of his employment with the employer, and such
breach or failure by its nature is incapable of being cured, or
such breach or failure remains uncured for more than 30 days
following receipt by the Executive of written notice from the
Employer specifying the nature of the breach or failure and
demanding the cure thereof.
Without limiting the generality of the foregoing, the following shall not
constitute Cause:
(4) Any personal or policy disagreement between the Executive and the
Employer or any member of the Board of Directors of the Employer;
or
(5) Any action taken by the Executive in connection with his duties
if (i) the Executive acted in good faith and in a manner the
Executive reasonably believed to be in, and not opposed to, the
best interests of the Employer and (ii) the Executive had no
reasonable cause to believe his conduct was unlawful.
Notwithstanding anything herein to the contrary, in the event the Employer
terminates the employment of the Executive for Cause hereunder, the Employer
shall give at least 30 days prior written notice to the Executive specifying in
detail the reason or reasons for the Executive's termination for Cause.
(d) "Change in Control" shall be deemed to occur in connection with any of
the following events:
(1) The Xxxxxx Group ceases to be the beneficial owner, directly or
indirectly, of a majority voting power of the voting stock of the
Employer;
(2) The transfer or sale of a Substantial Portion of the Property of
the Employer in any transaction or series of transactions to any
entity or entities other than an entity of which the Xxxxxx Group
owns at least 80% of such entity's capital stock or beneficial
interest.
(3) Any person or entity, other than the Xxxxxx Group, assumes,
without the consent of the Xxxxxx Group, management
responsibilities for the affairs of G-I or any subsidiary
thereof.
For purposes of this subsection (d), the "Xxxxxx Group" shall mean (i)
Xxxxxx X. Xxxxxx, his heirs, administrators, executors and entities of which a
majority of the voting stock is owned by Xxxxxx X. Xxxxxx, his heirs,
administrators or executors and (ii) any entity controlled, directly or
indirectly, by Xxxxxx X. Xxxxxx or his heirs, administrators or executors. Also
for purposes of this subsection (d), "beneficial ownership" shall be determined
in accordance with Rule 13d under the Securities Exchange Act of 1934,
as amended.
(c) "Code" means the Inernal Revenue Code of 1986, as amended.
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(f) "Effective Date" means the date of this Agreement as set forth above
(g) "Good Reason" shall exist if:
(l) There is a significant adverse change in the nature or the scope
of the Executive's authority or duties;
(2) There is a reduction in the Executive's rate of Base Salary in
effect at the time of the Change in Control, or a material
adverse change to the Executive with respect to the bonus plan as
in effect at the date of the Change of Control.
(3) The Employer changes the principal location in which the
Executive is required to perform services to a location not
within a 50 mile radius from 0000 Xxxx Xxxx, Xxxxx, Xxx Xxxxxx;
(4) The Employer terminates or amends any Incentive Plan or
Retirement Plan so that, when considered in the aggregate with
any substitute Plan or Plans, the Incentive Plans and Retirement
Plans in which he is participating fail to provide him with a
level of benefits at least equal to the value of the level of
benefits provided in the aggregate by such Incentive Plans or
Retirement Plans at the date of a Change in Control.
Notwithstanding the foregoing, this subparagraph (4) shall not be
considered Good Reason if the Employer agrees to pay to the
Executive outside of each such Plan the difference in the value
of benefits in the same form, time and manner as payments are
otherwise to be made to the Executive under the Plan.
(i) "Incentive Plans" shall mean any incentive, bonus, deferred
compensation or similar plan or arrangement currently or hereafter made
available by the Employer in which the Executive is eligible to participate,
including but not limited to those plans listed on Exhibit A.
(j) "Retirement Plans" shall mean any qualified or supplemental defined
benefit retirement plan or defined contribution retirement plan currently or
hereinafter made available by the Employer in which the Executive is eligible to
participate, or any private retirement arrangement maintained by the Employer
solely for the Executive, including but not limited to those plans listed on
Exhibit B.
(k) "Severance Period" shall mean the period beginning on the date the
Executive's employment with the Employer terminates under circumstances
described in Section 3 and ending on the first to occur of either the date that
is 24 months thereafter or the date the Executive attains or would have attained
age 65.
(l) "Substantial Portion of the Property of the Employer" shall mean a
majority of the aggregate book value of the assets of the Employer as set forth
on the most recent balance sheet of the Employer, prepared on a consolidated
basis, by its regularly employed, independent, certified public accountants.
(m) "Welfare Plan" shall mean any health, major medical, vision or dental
plan, disability plan, survivor income plan or life insurance plan or other
arrangement currently or
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hereafter made available by the Employer in which the Executive is eligible to
participate, including but not limited to those plans listed on Exhibit C.
2. Term. The term of this Agreement shall be the period beginning on the
Effective Date and terminating on the first to occur of either (i) the date that
is 24 months after the date of the Executive's termination of employment under
circumstances described in Section 3, or (ii) the date the Executive attains or
would have attained age 65 (the "Term").
3. Benefits Upon Termination of Employment. If, at any time during the 36
month period following a Change in Control, (i) the Executive's employment with
the Employer is terminated by the Employer (or any successor to the Employer)
for any reason other than Cause, or (ii) the Executive terminates his employment
with the Employer for Good Reason, the following provisions will apply:
(a) The Employer shall provide to the Executive a single sum payment equal
to the sum of two times the Executive's Base Salary and two times the
Executive's Bonus, to be paid within 60 days of the Executive's termination of
employment.
(b) The Executive shall immediately become fully vested and entitled to
receive any and all benefits accrued under any Incentive Plans and Retirement
Plans to the date of termination of employment, which amount, form and time of
payment of such benefits shall be determined by the terms of such Incentive Plan
or Retirement plan, and the Executive's employment shall be deemed to have
terminated by reason of retirement under each such Plan under circumstances that
have the most favorable result for the Executive thereunder. To the extent that
such accelerated vesting or deemed termination treatment is not permitted under
the terms of any such Incentive Plan or Retirement Plan, the Employer will make
payments or distributions, to the Executive outside of each such Plan in an
amount substantially equivalent to the payments or distributions the Executive
would have received had such accelerated vesting or deemed termination treatment
been permitted under the terms of the Plan.
(C) For purposes of all Incentive Plans and Retirement Plans, the Executive
shall be given service credit for all purposes for, and shall be deemed to be an
employee of the Employer during, the Severance Period. To the extent that such
service credit or deemed employee treatment is not permitted under the terms of
any such Incentive Plan or Retirement Plan, the Employer will make payments or
distributions to the Executive outside of each such Plan in an amount
substantially equivalent to the payments or distributions the Executive would
have received had such service credit or deemed employee treatment been
permitted under the terms of the Plan.
(d) If upon the date of termination of the Executive's employment, the
Executive holds any options with respect to stock of the Employer, all such
options will immediately become fully vested and exercisable upon such date and
will be exercisable for the shorter of: (i) 24 months after the date of the
Executive's termination of employment; or (ii) for the term of the options as
provided in the governing option plan or option agreement. Upon acceleration of
vesting and exercise of such options, the Employer will provide to the Executive
a lump sum payment, within 60 days after the exercise of such options, in an
amount equal to the excess, if any, of the aggregate fair market value of all
stock of the Employer subject to such options, determined as of the date of
termination of employment, over the aggregate option price of such stock, and
the Executive will surrender all such options unexercised.
(e) During the Severance Period, the Executive and his spouse and other
dependents
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will continue to be covered by all Welfare Plans maintained by the Employer in
which the Executive, spouse or dependents were participating immediately before
the date of the Executive's termination as if the Executive continued to be an
employee of the Employer provided, that if participation in any one or more of
such Welfare Plans is not possible under the terms thereof, the Employer will
provide substantially identical benefits to the Executive and his spouse and
other dependents outside of the Welfare Plans for the duration of the Severance
Period. If, however, the Executive obtains full-time employment with another
employer during the Severance Period, such coverage (other than federally
mandated COBRA coverage) shall cease as of she day of his employment with the
new employer.
(f) The Executive shall be entitled to a payment attributable to
compensation for unused vacation periods accrued as of the date of his
termination of employment. Payment for accrued, unused vacation shall be made
to the Executive in a lump sum within 30 days following the date of the
Executive's termination of employment.
(g) Subject to the provisions set forth herein, the Executive shall not be
entitled to reimbursement for miscellaneous fringe benefits during the Severance
Period, such as dues and expenses related to club memberships or expenses for
professional services.
(h) Subject to the provisions set forth herein, the Executive shall not be
entitled to and the Employer shall have no other obligation to provide any
severance pay under the Employer's severance pay policy or otherwise.
4. No Setoff.
(a) The payments or benefits payable to the Executive, his spouse or other
beneficiary under this Agreement shall not be reduced by the amount of any claim
of the Employer against the Executive, his spouse or other beneficiary for any
debt or obligation of the Executive, his spouse or other beneficiary owing to
the Employer.
(b) No payments or benefits payable to the Executive, his spouse or other
beneficiary under this Agreement shall be reduced by any amount the Executive,
his spouse or other beneficiary may earn or receive from employment with another
employer or from any other source, except as expressly provided in paragraph
3(e).
5. Death. If the Executive dies during the Severance Period, the following
rules shall apply:
(a) All amounts payable hereunder to the Executive shall, during the
remainder of the Severance Period, be paid to his surviving spouse or other
beneficiary. On the death of the survivor of the Executive and his spouse or
other beneficiary, no further benefits will be paid under the Agreement.
(b) During the remainder of the Severance Period, the Executive's spouse
and dependents, if any, shall be covered under all Welfare Plans made available
by the Employer to the Executive, his spouse or dependents immediately before
the date of the Executive's death; provided, that if participation in any one or
more of such Welfare Plans is not permitted under the terms thereof, the
Employer shall provide substantially identical benefits to the spouse and
dependents outside of the Welfare Plans for the duration of the Severance
Period.
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Any benefits payable under this Section 5 are in addition to any other
benefits due to the Executive, his spouse or other beneficiaries or dependents
from the Employer, including, but not limited to, payments under any of the
Incentive Plans or Retirement Plans,
6. Termination for Cause or Without Good Reason. If the Executive's
employment with the Employer is terminated (i) for any reason before a Change in
Control, or (ii) after a Change in Control by the Employer for Cause or by the
voluntary action of the Executive without Good Reason, the Executive's base
salary in effect on the date of termination shall be paid through the date of
termination, and the Employer shall have no further obligation to the Executive,
his spouse or other beneficiary under this Agreement, except for benefits
accrued under any Incentive Plans and Retirement Plans under paragraph 3(b) and
payable in accordance with such Plans.
7. Restrictive Covenants, No Solicitation of Representatives and Employees,
and Confidentiality. The Executive reaffirms his continuing obligations
regarding confidentiality and non-disclosure, non-competition, and
non-solicitation of the Employer's representatives and employees under the
Agreement Regarding Confidentiality and Competition he signed on July 10, 1998
which is attached to this Agreement as Exhibit D and made a part hereof, except
that the definition of "Competitive Organization" as set forth in Paragraph
2(iii) of the Agreement Regarding Confidentiality and Competition shall include
only roofing manufacturing companies, and not distributors or customers of
Employer and the Restricted Period (as defined in Paragraph 2 of the Agreement
Regarding Confidentiality and Competition.) shall be 18 months. If any conflict
arises between the terms of this Agreement and the terms of the Agreement
Regarding Confidentiality and Competition regarding the Executive's obligations,
the terms of this Agreement shall govern.
Executive agrees to keep this Agreement strictly confidential and not to
disclose its contents to anyone except his attorney and/or financial advisor, if
any, and appropriate governmental agencies which require this information or
except if required to respond to a valid subpoena or other legally required
process. Executive may also disclose this Agreement and its contents to his
immediate family. If disclosure is made to any of the foregoing, Executive shall
advise each of the confidentiality requirements of this Agreement. If Executive
is required to respond to a subpoena or other lawful process which calls for:
(i) the disclosure or production of this Agreement, or any contents hereof, he
shall notify GAFMC as soon as practicable by telefaxing or mailing the subpoena
or other lawful process to General Counsel, GAP Materials Corporation, 0000 Xxxx
Xxxx, Xxxxx, Xxx Xxxxxx 00000, telefax no. (000) 000-0000.
8. No Employer Assignment. The Employer may not assign this Agreement,
except that the Employer's obligations hereunder shall be binding legal
obligations of any successor to all or substantially all of the Employers
business by purchase, merger, consolidation or otherwise.
9. No Executive Assignment. No interest of the Executive or his spouse or
other beneficiary under this Agreement, nor any right to receive any payment or
distribution hereunder, shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment or other alienation or encumbrance
of any kind, nor may such interest or right be taken, voluntarily or
involuntarily, for the satisfaction of the obligations or debts of, or other
claims against, the Executive or his spouse or other beneficiary, including
claims for alimony, child support, separate maintenance and claims in bankruptcy
proceedings.
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10. Waiver. The Employer and the Executive shall each have the right to
waive any condition of compliance or breach of this Agreement by the other
party. No such waiver, however, shall be effective unless it is in writing and
signed by the party to be charged, nor shall any such waiver be deemed a waiver
of any other condition, breach or other provision of this Agreement running in
favor of that parry.
11. Outplacement Expenses. The Employer shall pay the reasonable cost of
the Executive's out-of-pocket expenses relating to executive 1evel outplacement
services for the Executive's pursuit of subsequent employment during the
Severance Period.
12. Arbitration. The Executive and Employer agree to submit any controversy
claim, or dispute arising from this Agreement, except as set forth herein, to
binding arbitration before one neutral arbitrator with the American Arbitration,
Association. Any such arbitration shall be commenced by filing a demand for
arbitration within sixty (60) days after such controversy, claim, or dispute has
arisen. Notwithstanding the foregoing, the Executive and Employer agree that
nothing in this Agreement shall be construed to limit the Employer's right to
seek injunctive relief with any court of appropriate jurisdiction with respect
to any breach of the Executive's obligation(s) under Paragraph 7 of this
Agreement or under the Agreement Regarding Confidentiality and Competition
attached hereto as Exhibit D.
13. Applicable Law. This Agreement shall be construed and interpreted
pursuant to the laws of the State of New Jersey.
14. Entire Agreement. This Agreement contains the entire Agreement between
the Employer and the Executive and supersedes any and all previous agreements,
written or oral, among the parties relating to the subject matter hereof. No
amendment or modification of the terms of this Agreement shall be binding upon
the parties hereto unless reduced to writing and signed by the Employer and the
Executive.
15. No Employment Contracts. Nothing contained in this Agreement shall be
Construed to be an employment contract between the Executive and the Employer.
The Executive is employed at will, and the Employer may terminate his employment
at any time, with or without cause.
16. Severability. In the event any provision of this Agreement is held to
be illegal or invalid, the remaining provisions of this Agreement shall remain
in full force and effect.
17. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives and
successors.
18. Notice. Notices required under this Agreement shall be in writing and
sent by registered mail, return receipt requested, to the addresses heretofore
provided or to such other address that the party being notified may subsequently
furnish to the others by written notice. Any notice addressed to the Employer
shall be addressed to the attention of the General Counsel of the Employer.
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19. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
EXECUTIVE EMPLOYER
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------- --------------------------
Xxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Its: President & CEO
EXHIBIT A
Executive Incentive Compensation Program
Preferred Stock Option Plan
Book Value Unit Plan
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EXHIBIT B
Capital Accumulation Plan (401k)
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EXHIBIT C
Life Insurance
Short-Term Disability
Long-Term Disability
Flexible Benefits Program (which includes coverage for group health
insurance, prescription drug, dental, and vision; spouse life insurance, child
life insurance, Health Reimbursement Account, and Dependent Care Reimbursement
Account)
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XXXXX XXXXXXXX
WAYNE
AGREEMENT REGARDING CONFIDENTIALITY AND COMPETITION
Residential Roofing Products Sales and Marketing Professionals
(GAFMC)
In consideration of my employment, an increase in compensation, or such
other good and valuable consideration by GAF Materials Corporation and its
subsidiaries (collectively "GAFMC'), I agree to the terms contained in this
Agreement.
1. Confidential Information. During the course of my employment, I may have
access to information, in any form or medium, relating to GAFMC's business and
finances, some of which may be trade secrets, concerning competitive analyses,
product costs, manufacturing costs, pricing information, business forecast
information, sales information, profit information, accounting information, tax
information, financial plans, acquisition and divestiture information and
strategies, business strategies, product improvements and strategies, service
improvements and strategies, marketing improvements and strategies, sales
improvements and strategies, current product applications, current marketing
plans and current sales plans, chemical processes and techniques, administrative
information including management organizational information, and/or information
which has not been made available to the general public by senior management
(all the aforementioned information is collectively referred to as 'Confidential
Information'). I agree never to disclose Confidential Information except as is
reasonably necessary to perform my job at GAFMC. Upon request or termination of
my employment, I agree to return all Confidential Information.
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, while
employed by GAFMC and for twelve (12) months (the "Restricted Period") after my
employment is terminated (i) by me or (ii) by the Company for cause. 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 in which my
soliciting business, on the Competitive Organization's behalf, from any
person(s), organization(s), or entity(ies), to whom I sold or marketed
Competitive Product(s)could be of the competitive advantage to the Competitive
Organization. I may become engaged 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 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 (which will be deemed satisfactory if GAFMC
does not respond within 30 days of its receipt of such written assurances), 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.
As used in this paragraph 2:
(i) "for cause' means: (a) the employee's repeated failure to follow the
instructions or directions of his supervisors in connection with the performance
of his
duties and responsibilities; (b) any fraud, criminal misconduct, breach of
fiduciary duty, dishonesty, gross neglect or willful misconduct by the employee
in connection with the performance of any of his duties and responsibilities;
(c) the employee's being under the influence of alcohol or illegal drugs during
business hours or while on call; (d) the commission by the employee of either a
felony or a crime of moral turpitude; or (e) any conflict of interest or other
conduct by employee that is incompatible with continuance of employment by the
Company and is not cured by employee within 14 days of notice by the Company;
(ii) "Competitive Product" means: any residential roofing product,
insulation product applicable to residential roofs, residential roofing
accessories, residential roofing service(s) or any product(s) or service(s) that
I sold, marketed, or had substantial involvement with 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 engaged in the manufacture 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 a GAFMC executive,
management, sales and marketing, operations, or research and development
employee.
4. Inventions, Techniques, or Processes. Any inventions, techniques,
processes, and the like developed by me during the course of my employment
(collectively referred to as "Intellectual Property") are the property of GAFMC,
and I assign to GAFMC all rights to such Intellectual Property, patentable or
not, made or conceived by me while employed by GAFMC. I agree to do all that is
necessary to cause all right and title pertaining to such Intellectual Property
to belong exclusively to GAFMC and to enable GAFMC to maintain copyright,
patent, trademark or other legal protection anywhere in the world.
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.
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, and any
invalid provision of this Agreement may be reformed, and as reformed, enforced.
GAFMC may assign its rights under this Agreement.
/s/ /s/
----------------------- ----------------------------
Employee GAFMC
Date: 7/10/98 Date: 7/29/98
THIS AGREEMENT IS NOT, AND SHALL NOT BE CONSTRUED TO CREATE A CONTRACT OF
EMPLOYMENT, EXPRESS OR IMPLIED. I REMAIN AN AT-WILL EMPLOYEE. THIS MEANS
THAT I HAVE THE RIGHT TO TERMINATE THE EMPLOYMENT RELATIONSHIP WITH OR
WITHOUT CAUSE OR REASON, AND WITHOUT PRIOR NOTICE OR COMPLIANCE WITH ANY
PROCEDURES. LIKEWISE, GAFMC CAN TERMINATE MY EMPLOYMENT WITH OR WITHOUT
CAUSE OR REASON, AND WITHOUT PRIOR NOTICE OR COMPLIANCE WITH ANY
PROCEDURES.
