Exhibit 10.22
EMPLOYMENT SECURITY AGREEMENT
This Employment Security Agreement (the "Agreement") is entered into as of
the 10th day of May 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 Xxxxxxx X. Xxxxxxx, residing
at____________________________(the "Executive").
WITNESSETH
WHEREAS, the Executive is currently employed by the Employer as its
President and Chief Executive Officer; 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:
1. 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 full 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; or
(2) The Executive is convicted of a criminal violation involving
fraud or dishonesty.
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(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.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Effective Date" means the date of this Agreement as set forth above.
(g) "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 plants listed on Exhibit A.
(h) "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.
(i) "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 36 months thereafter or the date the Executive attains or would have
attained age 65.
(j) "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.
(k) "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 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.
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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 36 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 any reason, the following provisions will apply:
(a) The Employer shall provide to the Executive at the Executive's
discretion, either: (i) a single sum payment equal to the sum of three times the
Executive's Base Salary and three times the Executive's Bonus, to be paid within
60 days of the Executive's termination of employment; or (ii) an annuity of
equivalent value to be paid out annually over the 36 month period following
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) 36 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
at his discretion, either: (i) 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, or (ii) an annuity of equivalent value earning interest at
the prime rate to be paid out quarterly over a ten (10) year period beginning
the date Executive becomes age 60, and the Executive will surrender all such
options unexercised.
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(e) During the Severance Period, the Executive and his spouse and other
dependents 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 the day of his employment
with the new employer, except if such new employer is a charitable, educational,
or governmental employer as defined by the Code.
(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 membership. 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. 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, 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 an December 22,
1998 which is attached to this Agreement as Exhibit D and made a part hereof.
The twelve (12) month Restricted Period set forth in Paragraph 2 of the
Agreement Regarding Confidentiality and Competition shall apply, in addition to
the circumstances set forth therein, if Executive is terminated without Cause
and the Executive receives the pay, benefits, and other consideration set forth
in this Agreement. 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.
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 Employer's
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.
10. Benefits Unfunded. All rights of the Executive and his spouse or other
beneficiary under this Agreement shall at all times be entirely unfunded, and no
provision shall at any time be made with respect to segregating any assets of
the Employer for payment of any amounts due hereunder. Neither the Executive nor
his spouse or other beneficiary shall have any interest in or right against any
specific assets of the Employer, and the Executive and his spouse or other
beneficiary shall have only the rights of a general unsecured creditor of the
Employer.
11. 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 party.
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12. Outplacement Expenses. The Employer shall pay the reasonable cost of
the Executive's out-of-pocket expenses relating to executive level outplacement
services for the Executive's pursuit of subsequent employment during the
Severance Period.
13. 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 the Agreement Regarding
Confidentiality and Competition attached hereto as Exhibit D.
14. Applicable Law. This Agreement shall be construed and interpreted
pursuant to the laws of the State of New Jersey.
15. 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.
16. No Employment Contract. 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.
17. 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.
18. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives and
successors.
19. 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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20. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
EXECUTIVE EMPLOYER
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------- ------------------------------
Xxxxxxx X. Xxxxxxx Name Xxxxxxx X. Xxxxxxxx
June 10, 2001 Its: Executive VP-General Counsel
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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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EXHIBIT D
AGREEMENT REGARDING CONFIDENTIALITY AND COMPETITION
Management Professionals (GAFMC)
In consideration of my employment, an increase in compensation, stock
options 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 a variety of 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. GAFMC agrees that my compilation of business contacts
in my personal directory is not considered Confidential information for purposes
of this Paragraph 1, and I represent and warrant that such directory consists of
only addresses, telephone numbers and other personal information. I agree to
provide GAFMC with a copy of my directory upon its request after the termination
of my employment.
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. 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 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.
Notwithstanding the foregoing, if I terminate my employment, this paragraph
2 shall not restrict me from becoming engaged as an employee, consultant or
otherwise for the following Competitive Organizations: (i) a manufacturer of
roofing products having annual sales less than $100,000,000; or (ii) a
manufacturer of equipment, coatings, or fasteners for residential
roofing-related products, provided that at the time of my termination of
employment, GAFMC expressly consents to such engagement, which consent shall not
be unreasonably withheld. However, such consent shall not be required if I
terminate my employment for good reason. GAFMC must notify me whether it
consents to such engagement within ten (10) days of my written request for such
consent. Exclusively with respect a dispute regarding whether GAFMC has
unreasonably withheld its consent to such engagement, the parties agree to
submit this issue to expedited, binding arbitration, such arbitration to be
submitted to arbitration within 60 days of the date GAFMC notifies me in writing
that it has withheld its consent; provided, however, that I agree not to
undertake such engagement until an arbitration decision has been rendered
regarding the foregoing issue. Such arbitration shall be submitted to the
American Arbitration Association before one neutral arbitrator. The prevailing
party shall reimburse the other party for its costs and fees, including
reasonable attorneys' fees, incurred in connection with an arbitration under
thus Paragraph 2 Judgment on the award rendered in arbitration may be entered in
any court having jurisdiction.
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 products,
residential insulation products, residential roofing accessories, residential
roofing services, glass strand technology based residential roofing products. or
any residential roofing 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 engaged in the manufacture of a Competitive Product.
(iv) "good reason" means: (i) a material change in my direct reporting
obligations to the President and Chief Operating Officer; or (ii) a substantial
diminution of my material duties and responsibilities.
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 to work with or provide services for a Competitive Organization.
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, any invalid
provision of this Agreement may be reformed. and as reformed, enforced.
GAFMC may assign its rights under Agreement
/s/ Xxxxxxx Xxxxxxx
------------------- ------------------
Xxxxxxx Xxxxxxx GAFMC
Date: 12/22/98 Date: 12/30/98
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.
