Exhibit 10.7
April 28, 1999
EMPLOYMENT AGREEMENT
For
CHIEF FINANCIAL OFFICER
THIS AGREEMENT, dated as of the 28/th/ day of April 1999, by and among Citizens
Bancshares of Southwest Florida, Inc., a Florida corporation (the "Employer"),
Citizens National Bank of Southwest Florida (Proposed), a proposed national bank
to be organized under the laws of the United States (the "Bank") (The Employer
and the Bank are collectively referred to herein as the "Employer"), and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ("Executive").
WITNESSETH:
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WHEREAS, the directors of the Employer, as organizers of the Bank, are
seeking approval from the Comptroller of Currency ("OCC") and the Federal
Deposit Insurance Corporation ("FDIC") to charter a national bank in ▇▇▇▇▇▇▇
County, Florida; and
WHEREAS, as of the date of this Agreement the Employer has obtained
preliminary approval from the OCC is currently seeking approval from FDIC.
WHEREAS, Executive is willing to assist the directors of the Employer in
the organization of the Bank and to become the Chief Financial Officer of the
Bank and the Employer in accordance with the terms and conditions hereinafter
set forth:
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. Employment. Employer employs Executive and Executive accepts
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employment upon the terms and conditions set forth in this Agreement.
2. Term. Unless earlier terminated under the provisions of this
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Agreement the term of employment of Executive under this Agreement shall be the
three-year period commencing on April 28, 1999 ("Commencement Date"), and ending
on April 28, 2002.
3. Compensation. For all services to be rendered by Executive during the
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term of this Agreement, Employer agrees to pay Executive in accordance with the
terms outlined in Exhibit "A" net of applicable withholdings.
4. Title and Duties. Executive shall serve as Chief Financial
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Officer of the Bank commencing on the Commencement Date. Executive's duties are
described on attached Exhibit "B".
9. Extent of Services. Commencing on the Commencement Date, Executive
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shall devote his full business time, attention and energies to the business of
Employer and shall not during the term of this Agreement be engaged in any other
career which requires the attention or participation of Executive during normal
business hours of Employer, recognition being given to the fact that Executive
is expected on occasion to participate in client development after normal
business hours. However, Executive may invest his assets in such form or manner
as Executive so desires, so long as such investments do not require his services
during normal business hours in the operation of the affairs of the companies in
which such investments are made. Executive shall notify Employer of any
significant participation by him in any trade association or similar
organization.
10. Expenses. Executive may incur reasonable expenses for promoting the
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business of the Bank, including expenses for entertainment, travel, and similar
items. Executive will be reimbursed for all such expenses upon Executive's
periodic presentation of an itemized account of such expenditures. Executive's
reimbursable expenses are further detailed on Exhibit "A".
11. Vacations. Executive shall be entitled each year to a vacation in
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accordance with the personnel policy established by the Bank's Board of
Directors, during which time Executive's compensation shall be paid in full.
Executive's vacation allowance is further detailed on Exhibit "A".
12. Executive Benefits. Without limiting or reducing any of the
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Executive's rights and benefits available to Executive as an employee under
state and/or federal law, so long as Executive is employed, Executive will be
entitled to participate in the employee benefit programs offered to Employer's
employees and covering the Executive's employment and duties including without
limitation those rights and benefits described in Exhibit "A" of this Agreement.
9. Confidentiality. In Executive's position as an employee of Employer,
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Executive has had and will have access to confidential information, trade
secrets and other proprietary information of vital importance to Employer and
has and will also develop relationships with customers, employees and others who
deal with Employer which are of value to Employer. Employer requires as a
condition to Executive's employment with Employer that Executive agrees to
certain restrictions as set forth below on Executive's use of the proprietary
information and valuable relationships developed during Executive's employment
with Employer. In consideration of the terms and conditions contained herein,
the parties hereby agree as follows:
9.4 Employer and Executive mutually agree and acknowledge that
Employer may entrust Executive with highly sensitive confidential, restricted
and proprietary information concerning various Business Opportunities (as
hereinafter defined), customer lists, and personnel matters. Executive
acknowledges that during Executive's employment by the Employer, he shall
bear a responsibility to Employer to protect such information from use to
disclosure that is not necessary for the performance of Executive's duties
hereunder, as an essential incident of Executive's employment with Employer.
9.5 For the purposes of this Section, the following definitions shall
apply:
9.2.1 "Trade Secret" shall mean the identity of customers of
Employer, the whole or any portion or phase of any scientific or technical
information, design, process, procedure, formula or improvement that is valuable
and secret (in the sense that it is not generally known to competitors of
Employer) and which is defined as a "trade secret" under Florida law
9.2.2. "Confidential Information" shall mean any data or inform-
tion, other than Trade Secrets, which is material to Employer and not generally
known by the public. Confidential Information shall include, but not be limited
to, Business Opportunities of Employer (as hereunder defined), the details of
this Agreement, Employer's business plans and financial statements and
projections, and the costs of the services Employer may offer or provide to the
customers they serve, to the extent such information is material to Employer and
not generally known by the public.
9.2.5 Business Opportunities" shall mean any specialized
information or plans of Employer concerning the provision of financial services
to the public, together with all related information concerning the specifics of
any contemplated financial services regardless of whether Employer has contacted
or communicated with such target person or business.
9.2.6 Notwithstanding the definitions of Trade Secrets,
Confidential Information, and Business Opportunities set forth above, Trade
Secrets, Confidential Information, Business Opportunities and the information
generally subject to this Paragraph 9 and its subparts shall not include any
information:
(vi) that is or becomes generally known to the public;
(vii) that is already known by Executive or is developed
by Executive after termination of employment through entirely independent
efforts;
(viii) that Executive obtains from an independent source
having a bona fide right to use and disclose such information;
(ix) that is required to be disclosed by law, except to
the extent eligible for special treatment under an appropriate protective order;
or
(x) that Employer's Board of Directors approves for
release.
9.3 Executive shall not, without the prior approval of Employer's
Board, during his employment with Employer and for a period of one (1) year from
the last day of his providing full services under his employment with the
Employer use or disclose to any unauthorized person who is not an employee of
Employer any Trade Secrets and/or Confidential Information of Employer, its
subsidiaries or affiliates, or of any other person or entity making Trade
Secrets and/or Confidential Information available for Employer's use unless said
Trade Secrets and/or Confidential Information ceases to be a Trade Secret and/or
unless the Employer ceases to do business in ▇▇▇▇▇▇▇ County, Florida, in which
case these restrictions on disclosure and use shall not apply.
10. Observance of Security Measures. During Executive's employment with
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Employer, Executive is required to observe all security measures adopted to
protect Trade Secrets, Confidential Information, and Business Opportunity of
Employer.
12. Change in Control of the Employer.
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12.1 In the event of a "change in control" of the Employer, as defined
hereinafter, Executive shall be entitled at any time up to thirty (30) days
prior to the date of closing of the transaction (the "Election Date") which will
affect such change in control (the "Change-in-Control Date") and at his
election, to give written notice to Employer of termination of this Agreement
("Change-in Control Termination Notice"), and following Change-in-Control
Termination Notice, Executive shall be paid in addition to all accrued but
unpaid Base Salary (which is to be paid as earned) and Performance Bonuses
(which are to be paid as provided in paragraph B of Exhibit "A" of this
Agreement) a lump sum cash payment in the amount stated in Paragraph J of
Exhibit "A" (the "Change-in-Control Payment"). The Change-in-Control payments
provided for in this Section 11.1 shall be unconditional and without setoff of
any kind and paid in cash, not later than ten (10) days after the date of the
Change-in-Control Termination Notice by Executive under this Section 11.1 or on
the Change-of-Control Date, whichever is later; provided, however, that such
Change-in-Control Payment shall in no event be paid later than ninety (90) days
from the date of the Change-in-Control Notice by Executive. Additionally, the
Change-in-Control payment shall be made to Executive as a condition precedent to
the closing of the transaction which will effect the change in control, and
prior to the Change-in-Control Date, Employer shall notify representatives of
the acquiring or successor entity, as the case may be, of Executive's rights and
Employer's obligations under this Agreement, including without limitation this
paragraph, and without affecting Employer's obligations to pay Executive
hereunder, any such acquiring or successor entity shall become obligated to
forthwith pay to Executive for such part of the Change-in-Control Payment as has
not been paid by the Employer as of the Change-in-Control Date.
12.2 In addition to the foregoing and notwithstanding any provision to
the contrary or otherwise in this Agreement, in the event of a change in control
of Employer (as defined hereinafter), all options and other stock rights of the
Executive, whether under this Agreement of otherwise (including, but not limited
to the accrual of stock options not yet issued to Executive, but to which
Executive is entitled), shall automatically and without further documentation
immediately vest in
Executive, and Executive shall have the immediate and unfettered right to take
any and all actions as Executive shall deem appropriate with regard to said
options and/or rights, including without limitation the immediate right to
receive unissued, but accrued stock options, exercise stock options and/or
transfer or sell stock. Employer shall take all actions necessary to immediately
issue any stock options which have accrued, but have not yet been issued.
11.5 If Executive elects to terminate this Agreement pursuant to this
Section 11, then Executive shall further be entitled, in lieu of the receipt of
shares of Common Stock of the Employer issuable upon exercise of Executive's
stock options, whether such options arose under this Agreement or otherwise, to
receive from Employer an amount in cash or Common Stock of the Employer (or any
combination thereof) as Executive shall in his sole discretion designate
(hereinafter "like-kind-election") equal to the excess of the fair market value
(hereinafter defined) as of the Change-in-control Date of each share of Common
Stock over the exercise price(s) of each share represented by Executive's
options, times the number of shares of Common Stock represented by such options.
The "fair market value" of each share of the Common Stock shall be equal to the
highest of (I) the value as determined by the Board of Directors of the Employer
if there is no organized trading market for the shares at the time such
determination is made, or (ii) the closing price per share as of the date of the
like-kind election (or the average of the bid and asked prices if no closing
price is available) on any nationally recognized securities exchange or
association on which the Employer's shares may be quoted or listed, or (iii) the
highest per share price actually paid for Common Stock in connection with any
change in control of the Employer, or (iv) the fair market value of the shares
of the Common Stock as determined by Sheshunoff or ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or
similarly qualified entity or (v) the price being paid for each share of Common
Stock as part of the Change-in-Control. The payment provided for in this Section
11.2 shall be paid in full not later than ten (10) days after the date of the
Change-in-Control Notice by Executive under this Section 11 or on the
Change-of-Control Date, whichever is later.
11.6 For purposes of this Section 11, "change in control" of the
Employer shall mean the first to occur of any one or more of the following:
(vi) any transaction whether by merger, consolidation asset
sale, recapitalization, reorganization, combination, stock purchase, tender
offer, reverse stock split, or otherwise, which results in the acquisition of,
or beneficial ownership (as such term is defined under rules and regulations
promulgated under the Securities Exchange Act of 1934, as amended) by, any
person or entity or any group of persons or entities acting in concert, of 50%
or more of the outstanding shares of Common Stock of the Employer; or
(vii) the sale of all or substantially all of the assets of the
Employer; or
(viii) the liquidation of the Employer or a material amount of
Employer's assets; or
(ix) the takeover or control of all or substantially all of the
operations of Employer through any of the means specified in 11.4 (I) above; or
(x) the approval by the Board of Directors and the holders of
a majority of the Common Shares then outstanding of any of the events or
transactions listed in 11.4(i) - (iv) above.
12. Return of Materials. Upon the termination of his employment with
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Employer, Executive shall deliver to Employer all memoranda, notes, records,
manuals of other documents, including all copies of such materials, pertaining
to the performance of executive's services hereunder or containing Trade Secrets
or Confidential Information, whether made or compiled by Executive or furnished
to him from any source by virtue of his employment with Employer.
13. Severability. Executive acknowledges and agrees that the covenants
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contained in Sections 9 through 12 of this Agreement shall be construed as
covenants independent of one another and distinct from the remaining terms and
conditions of this Agreement, and severable from every other contract and course
of business between Employer and Executive, and that the existence of any claim,
suit or action by Executive against Employer, whether predicated upon this or
any other agreement shall not constitute a defense to Employer's enforcement of
any covenant contained in Sections 9 through 12 of this Agreement. Likewise, the
existence of any claim, suit and/or action by Employer against Executive,
whether predicated on this or any other agreement, shall not act as, constitute
or permit a setoff or defense of Employer's obligations under this Agreement.
14. Specific Performance. Executive acknowledges and agrees that except as
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otherwise stated, the covenants contained in Section 9 and 12 of this Agreement
shall survive any termination of employment, as applicable, with or without
Cause, at the instigation or upon the initiative of either party. Executive
further acknowledges and agrees that the ascertainment of damages in the event
of Executive's breach of any covenant contained in Section 9 and 12 of this
Agreement would be difficult, if at all possible. Executive therefore
acknowledges and agrees that Employer shall be entitled in addition to and not
in limitation of any other rights, remedies, or damages available to Employer in
arbitration, at law or in equity, upon submitting whatever affidavit the law may
require, and posting any necessary bond, to have a court of competent
jurisdiction enjoin Executive from committing any such breach of the covenants
stated in paragraphs 9 and 12.
15. Termination.
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15.1 For Cause. This Agreement may be terminated for any of the
following reasons by the Board of Directors of the Employer "for cause," but
only after giving Executive written notice of the Board's intent to terminate
Executive setting forth all matters constituting "cause"
and further giving thirty (30) days, (or, if cure is not able to be completed in
thirty (30) days after the exercise of due diligence, such longer period as is
reasonably necessary) to cure the matters giving rise to the "for cause"
termination: gross negligence or willful misconduct of executive materially
damaging to the business of the Employer during the term of this Agreement, or
at any time while he was employed by the Employer prior to the term of this
Agreement, if not disclosed to the Employer prior to the commencement of the
term of this Agreement; or conviction of Executive during the term of this
Agreement of a crime involving breach of trust or moral turpitude.
In the event that the Employer discharges Executive alleging
"cause" under this Section 15.1 and it is subsequently determined judicially
that the determination was "without cause", then such discharge shall be deemed
a discharge without cause subject to the provisions of Section 15.2 hereof. In
the event that Executive fails to cure those matters giving rise to the "for
cause" termination, then upon Employer's discharge of Executive for "cause"
under this Section 15.1, such notice of discharge shall be accompanied by a
written and specific description of the circumstances constituting such "cause"
(hereinafter "Notice of Discharge.")
Upon termination for cause, Executive shall be paid not later
than the thirtieth day following the date of the Notice of Discharge, without
setoff or deduction, all accrued but unpaid Base Salary and Performance Bonuses,
and Executive shall further have those rights stated in Section 15.3 below.
15.5 Without Cause.
(iii) The Employer may, upon thirty (30) days' written notice
("Notice of Termination") to Executive, terminate this Agreement without cause
at any time during the term of this Agreement upon the condition that Executive
shall be paid without setoff or deduction (a) all Base Salary and Performance
Bonuses accrued, but not yet paid, plus (b) as liquidated damages in lieu of any
claim by Executive for damages arising out of early termination an amount equal
to the Change-in-Control Payment provided in Paragraph J of Exhibit "A" hereof,
and Executive shall have the right to a like-kind election as described in 11.3
above; provided, however, that for purposes of determining the fair market value
of common stock, such fair market value shall be determined as of the date of
Notice of Termination without cause of this Agreement given by the Employer to
Executive. Additionally, in the event of a without cause termination, Executive
shall have all of the rights and benefits provided for in Section 15.3 below.
The payment provided for in this Section 15.2 shall be made to
Executive not later than the thirtieth (30) day following the date of the
Notice of Termination of employment of Executive. In the event of termination by
Employer without cause, Employer shall have
no right to enforce the terms and conditions of the non-competition and non-
solicitation covenants in Section 17 hereof and such provisions shall not be
binding upon Executive.
(iv) Executive may upon thirty (30) days written notice
("Notice of Termination") to Employer terminate this Agreement without cause at
any time during the term of this Agreement. In the event of termination of this
Agreement by Executive, then Executive shall have all of the same rights that
Executive would have had if Employer had terminated without cause, except that
the Employer shall have no obligation to pay to Executive an amount equal to the
Change-in-Control Payment. However, Employer shall be obligated to pay, within
thirty (30) days of Executive's Notice of Termination without cause all Base
Salary and Performance Bonuses accrued, but not yet paid to Executive, and the
Employer shall be entitled to enforcement of the non-competition and non-
solicitation covenants contained in Section 17 hereof. Additionally, Executive
shall have and retain those rights specified in Section 15.3 below
15.3 In the event this Agreement is terminated with or without cause,
and, if without cause whether by Executive or by the Employer, all of
Executive's stock options including any options which have accrued, but not yet
been issued to Executive ("Accrued Options") and any unexercised portion of
Stock Options, granted pursuant to this Agreement of otherwise, whether or not
vested on the date of termination, may be exercised by Executive within thirty
(30) days from the date of termination, at which time all such options that have
not been so exercised shall expire; provided, however, that in the case of
Accrued Options, Executive shall have thirty (30) days from date of issuance of
the options to exercise the same, and should Executive fail to exercise such
right within thirty (30) days, the right to exercise shall expire.
16. Death or Disability.
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In the event of Executive's disability or death, Executive shall have all of the
same rights as if he had been terminated "without cause" and in the case of
disability Employer shall pay to Executive or in the case of death, Executive's
designated beneficiary, or, if Executive has failed to designate a beneficiary
to his estate, those amounts specified under Section 15.2 (a) and (b) above for
a "without cause" termination, and Executive shall also have all of the benefits
provided under 15.3 except that in the case of disability or death, all unvested
option shall immediately vest, and the time for exercising the options shall be
within three hundred sixty-five (365) days from the date of disability (as
defined below) or death. In the event of a change in control of the Employer
after Executive's death or disability as defined herein, Executive or
Executive's designated beneficiary or his estate, as the case may be, shall be
entitled to the rights, payments and benefits of Sections 11.1, 11.2 and 11.3
hereof. Employer may maintain insurance on Employer's behalf to satisfy in whole
or in part the obligations of Employer under this Section 16.
16.3 DISABILITY - means:
(iii) Solely due to injury or Sickness and for a consecutive
period of ninety (90) days;
(a) your ability to work is restricted, resulting in
the Loss of Earnings; or
(e) you are unable to perform the substantial and
material duties of your regular occupation in which you were engaged just prior
to the Disability, or
(f) your state licensing board has restricted your
ability to perform your occupation as a health care practitioner as a result of
testing positive on a human immunodeficiency virus test; and
(g) your Loss of Earnings is 20% or more of your Prior
Earnings.
(iv) You are receiving care from a Doctor which is appropriate
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or the condition causing your Disability. We will waive this requirement when
continued care would be of no benefit to you.
If a Disability is caused by more than one injury or
Sickness, we will pay benefits as if the Disability were caused by only one
injury or Sickness.
16.4 DOCTOR - means a medical practitioner who is legally licensed to
practice under state law, and not yourself, the Owner, or the Loss Payee
16.3 EARNINGS - means income you earn for labor or services performed.
This includes salary, wages, fees, draws, commissions, and other compensation
(excluding Stock options) you receive. If you are self-employed, this is not
income after deducting your normal and customary business expenses. These
expenses must be reasonable and must not exceed expenses before Disability
began. They must be deductible for Federal Income Tax purposes.
16.6 Identifiable contributions for you to any tax qualified
retirement, annuity salary reduction, or deferred compensation plan, whether
employer sponsored or individually owned, or to any non-qualified deferred
compensation plan are considered Earnings if they are:
(iii) Made either by you or on your behalf; and
(ii) Not waived by contract during your Disability.
16.7 During any period Earnings:
(i) Will include all income for services performed during that
period, whether or not received; but
(iv) Will not include income for services performed prior to
that period, regardless of when received.
17. Non-Competition and Non-Solicitation.
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17.5 Executive acknowledges that he has performed services or will
perform services hereunder, which directly affect Employer's business.
Accordingly, the parties deem it necessary to enter into the protective
agreement set forth below, the terms and conditions of which have been
negotiated by and between the parties hereto.
17.6 In the event of termination of employment under this Agreement
pursuant to Section 15 prior to the expiration of the term of this Agreement,
Executive agrees with Employer that through the actual date of termination of
the Agreement, and for a period of twelve (12) months after such termination
date, Executive shall not, without the prior written consent of Employer, within
▇▇▇▇▇▇▇ and ▇▇▇ County, Florida, either directly or indirectly, serve as an
officer, independent contractor, employee, director of any bank, bank holding
company or other financial institution.
17.7 The covenants of Executive set forth in this Section 17 are
separate and independent covenants for which valuable consideration has been
paid, the receipt, adequacy and sufficiency of which are acknowledged by
Executive, and have also been made by Executive to induce Employer to enter into
this Agreement. Further, each of the aforesaid covenants may be availed of or
relied upon by Employer in any court of competent jurisdiction, and shall form
the basis of injunctive relief and damages including expenses of litigation
(including but not limited to reasonable attorney's fees) suffered by Employer
arising out of any breach of the aforesaid covenants by Executive. The covenants
of Executive set forth in this Section 17 are cumulative to each other and to
all other covenants of Executive in favor of Employer contained in this
Agreement and shall survive the termination of this Agreement for the purposes
intended. Should any covenant, term, or condition contained in the Section 17
become or be declared invalid or unenforceable by a court of competent
jurisdiction, then the parties may request that such court judicially modify
such unenforceable provision consistent with the intent of this Section 17 so
that it shall be enforceable as modified, and in any event the invalidity of any
provision of this Section 17 shall not affect the validity of any other
provision in this Section 17 or elsewhere in this Agreement.
17.8 Notwithstanding anything to the contrary in this Section 17, this
Agreement or otherwise, in the event that Employer ceases to operate as a Bank
in ▇▇▇▇▇▇▇ County, then the provisions of Section 17.1 - 17.3 shall no longer
apply to Executive.
20. Notices. Any notice required or desired to be given
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under this Agreement shall be deemed given if in writing sent by certified mail
to his residence in the case of Executive, or to its principal office in the
case of Employer.
21. Waiver of Breach. The waiver by Employer or Executive, as the case
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may be, of a breach of any provision of this Agreement shall not operated or be
construed as a waiver of any subsequent breach by the breaching party. No waiver
shall be valid unless in writing and signed by an authorized officer of Employer
or Executive, as the case may be.
20. Assignment. Executive acknowledges that the services to be rendered
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by him are unique and personal. Accordingly, Executive may not assign any of his
rights or delegate any of his duties or obligations under this Agreement. The
rights and obligations of Executive under this Agreement shall insure to the
benefit of and shall be binding upon the successors and assigns of Employer.
21. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Florida.
22. Entire Agreement. The Agreement contains the entire understanding of
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the parties hereto regarding employment of Executive, and supersedes and
replaces any prior agreement relating thereto. It may not be changed orally but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
EMPLOYER
/s/ ▇▇▇ ▇. ▇▇▇
Dated: April 28, 1999
EXECUTIVE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Dated: April 28, 1999