Exhibit 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement (Agreement) is made by and between Generation Income Properties, Inc. (GIP) and David Sobelman (Employee) in consideration of Employees anticipated or continued employment relationship with GIP and the advantages and benefits of such relationship, the receipt and adequacy of all of such consideration being hereby acknowledged and accepted by Employee.
1. Offer and Agreement. GIP offers Employee a full-time position with GIP conditioned on Employees execution of this Agreement and Employees satisfactory completion of certain requirements, as more fully explained in this Agreement. Employees employment is subject to the terms and conditions set forth in this Agreement, which override anything said to Employee during any interview or any other discussions about Employees employment with GIP. The Employees employment hereunder shall be effective as of December 20, 2019 (the Effective Date) and shall continue until the fifth (5th) anniversary thereof (the Initial Term), unless terminated earlier pursuant to this Agreement; provided that, on such fifth (5th) anniversary of the Effective Date and each annual anniversary thereafter (such date and each annual anniversary thereof, a Renewal Date), the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one (1) year, unless either party provides written notice of its intention not to extend the term of the Agreement at least ninety (90) days prior to the applicable Renewal Date. The period during which the Employee is employed by GIP hereunder is hereinafter referred to as the Term.
2. Position. Employee will act as Chief Executive, President, and Secretary. Employee will conduct the activities and duties customarily associated with such positions, and perform other duties and responsibilities that are reasonable and consistent with such position as may be assigned to Employee from time to time. Employee will report directly to GIPs Board of Directors (the Board).
3. Compensation.
(a) Salary. GIP agrees to pay Employee a salary in cash (the Salary), as compensation for the services to be performed by Employee, at the rate of $100,000 per calendar year, paid in accordance with GIPs customary payroll procedures and subject to applicable deductions and withholding. During the Term, the Board shall have the right to increase, but not decrease, the Salary, except the Board may decrease the Salary in connection with a base salary decrease that is generally applicable to all members of GIPs senior management.
(b) Annual Bonus. Employee will be eligible to earn an annual bonus as determined by the Board and based on Employees performance.
(c) Separation Compensation. Upon termination of Employees employment with GIP and its affiliates, Employee shall be entitled to the compensation, if any, set forth in Section 6(b) below that applies to the circumstances of such termination.
4. Benefits. Employee will be eligible to participate in any benefit plans and programs in effect from time to time as are made available to other similarly situated employees of GIP, in accordance with and subject to the eligibility and other provisions of such plans and programs. Employee will have the right to other benefits that are consistent with benefits of other executives of GIP. Employee shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business, entertainment, and travel expenses incurred by Employee in connection with the performance of the Employees duties hereunder in accordance with GIPs expense reimbursement policies and procedures.
5. Life Insurance. Employee agrees that GIP may obtain a disability and life insurance policy with GIP as the beneficiary.
6. Termination.
(a) The Term and the Employees employment hereunder may be terminated by either GIP or the Employee at any time and for any reason; provided that, unless otherwise provided herein, Employee shall be required to give the GIP at least ninety (90) days advance written notice of any resignation. On termination of the Employees employment during the Term, unless otherwise provided herein, the Employee shall be entitled to the compensation and benefits described in Section 6(b) through the termination effective date and shall have no further rights to any compensation or any other benefits from GIP.
(b) In the event of termination of Employees employment during the Term by GIP without Cause, Employees separation compensation will be (i) Employees Salary and any bonus set forth in a previously adopted management bonus plan and accrued pursuant to that bonus plan, each prorated to the date of termination (Termination Date), and (ii) contingent on Employee executing and not revoking a release of claims in a form satisfactory to GIP within twenty-one (21) days after the Termination Date, cash in an amount equal to Employees Salary payable in equal installments in accordance with GIPs customary payroll procedures commencing on the payroll date next following the date that is thirty (30) days after the Termination Date (the Severance Start Date) and ending the earlier of (A) the end of the Initial Term, and (B) thirty-six (36) months after the Severance Start Date. If either party provides notice of non-renewal as set forth in Section 1 or Employee is terminated during the Term by GIP for Cause, Employee will receive only any then earned but unpaid Employees Salary and, with respect to any completed year preceding the Termination Date, bonus. As used herein, the term Cause shall mean (1) commission of a willful act of dishonesty in the course of Employees duties hereunder, (2) conviction by a court of competent jurisdiction of, or plea of no contest to, a crime constituting a felony or conviction in respect of, or plea of no contest to, any act involving fraud, dishonesty or
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moral turpitude (3) Employees refusal to perform duties and responsibilities or to carry out the lawful directives of the Board, which, if capable of being cured shall not have been cured, within 30 days after GIP shall have advised Employee in writing of its intention to terminate Employees employment, or (4) Employees material non-compliance with the terms of this Agreement, GIPs policies, or any other agreement between GIP and Employee, which, if capable of being cured, shall not have been cured within 30 days after GIP shall have advised Employee in writing of its intention to terminate Employees employment for such reason.
(c) The Employees employment hereunder shall terminate automatically on the Employees death during the Term, and GIP may terminate the Employees employment on account of the Employees Disability, the date of such death or Disability (the Disability Date). If the Employees employment is terminated during the Term on account of the Employees death or Disability, the Employee (or the Employees estate and/or beneficiaries, as the case may be) shall be entitled to receive Employees Salary for the six (6) month period after the Disability Date and any bonus set forth in a previously adopted management bonus plan and accrued pursuant to that bonus plan pro rated for such for the six (6) month period after the Disability Date, in each case, paid over such period in accordance with GIPs payroll process. Notwithstanding any other provision contained herein, all payments made in connection with the Employees Disability shall be provided in a manner which is consistent with federal and state law. For purposes of this Agreement, Disability shall have the definition set forth in GIPs long-term disability insurance plan, however, in the event there is no such definition or no plan in place, for this Agreement Disability shall mean the Employees inability, due to physical or mental incapacity, to perform the essential functions of the Employees job, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days. Any question as to the existence of the Employees Disability as to which the Employee and GIP cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Employee and GIP. If the Employee and GIP cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to GIP and the Employee shall be final and conclusive for all purposes of this Agreement.
(d) Upon termination of the Employees employment for any reason, the Employee shall be deemed to have resigned from all positions held with GIP or its affiliates, including, without limitation, any position as a director, officer, agent, trustee, or consultant of GIP or any affiliate of GIP, unless the Board expressly determines otherwise. Upon request of GIP, the Employee shall promptly sign and deliver to GIP any and all documents reflecting such resignations as of the Termination Date.
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7. Confidentiality Covenants. Employee acknowledges and understands that GIP is obligated by law to maintain the confidentiality of its client-related information, and Employee is required to treat such information as strictly confidential and privileged both during and after Employees relationship with GIP, regardless of whether the termination of the relationship is voluntary or involuntary or with or without cause. Employee further acknowledges and understands that it is essential to GIPs business that its professional and business relationships and information be protected. Employee agrees to keep in strict secrecy and confidence any and all information (whether in print, electronic, on computer disks, drives or tapes or in any other media, and whether internally generated or used by GIP under agreement with any third party) that Employee obtains or develops or to which Employee has access during his relationship with GIP and that is not a matter of common knowledge or public record, including but not limited to: the processes, strategies and/or techniques utilized by GIP; research records; technical data (e.g., financial and personnel data); staff lists and staff records; information regarding costs, pricing, marketing, contracts with third parties, plans for market or service developments or improvements, computer programs, computer interfaces or interface mechanisms, processes, business and strategic plans, or financial forecasts; any other information that derives economic value, either directly or indirectly, from being confidential to or trade secrets of GIP or its actual or potential customers or clients; or any information identifying or relating in any way whatsoever to any client of the firm or the services or advice rendered to any client of the firm (any such information being herein called Confidential Information). Employee agrees that such Confidential Information is and shall remain the property of GIP, and, both during and after the term of Employees relationship with GIP, without the prior written consent of GIP: (a) Employee will not use or disclose or cause to be disclosed any Confidential Information to any third person, partnership, joint venture, company, corporation, or other entity, organization or third party; (b) Employee will not take from any of GIPs offices for his own use or the use of any third party any document, paper, computer-generated media or other property of GIP containing Confidential Information (unless necessary during Employees employment with GIP or expressly authorized by GIP to conduct business on behalf of GIP); and (c) without request upon termination of Employees employment with GIP, or at any time that GIP may so request, Employee will immediately deliver to GIP any document, paper, electronic or computer-generated media or other property of GIP (and all copies of same) in Employees possession that contains Confidential Information. Nothing in this Section prohibits Employee from reporting possible violations of law or regulation to any governmental agency or making other disclosures that are protected under the whistleblower provisions of applicable law or regulation.
8. Non-Competition Covenants. Employee agrees, during his employment with GIP and for a period of twelve (12) months after the date on which Employee last performed any services for GIP, regardless of whether the termination of Employees relationship with GIP is voluntary or involuntary or with or without cause, that Employee will refrain from and will not, directly or indirectly, as independent contractor, employee, consultant, agent, partner, investor, joint venturer, or otherwise, engage in Competitive Activity within the state of Florida, whether Employee is physically within the state of Florida or is aiding or engaged with any other entity that is doing business within the state of Florida. Competitive Activity is activity whereby the Employee engages, directly or indirectly, in the business of a public company (including companies that are publicly traded and/or publicly reporting) single-tenant REIT. Competitive Activity also includes activity that may require or inevitably require disclosure of trade secrets,
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proprietary information, or Confidential Information. Employee further agrees that upon a violation of this section of this Agreement, the period during which the covenants herein apply will be extended by the number of days equal to the period of such violation. Nothing herein shall prohibit the Employee from purchasing or owning less than two percent (2%) of the publicly traded securities of any corporation, provided that such ownership represents a passive investment and that the Employee is not a controlling person of, or a member of a group that controls, such corporation.
9. Non-Solicitation Covenants. Employee agrees, during his employment with GIP and for a period of twelve (12) months after the date on which Employee last performed any services for GIP, regardless of whether the termination of Employees relationship with GIP is voluntary or involuntary or with or without cause, that Employee will refrain from and will not, directly or indirectly, as independent contractor, employee, consultant, agent, partner, joint venturer, or otherwise: (a) solicit or counsel any third person, partnership, joint venture, company, corporation, association or other organization with whom or with which Employee had a substantial relationship within the preceding twelve-month period, regardless of such persons or entitys location, to terminate any business relationship with GIP and/or commence a relationship with Employee or any other individual or business entity providing products or services similar to those provided by GIP; or (b) solicit any of the employees, agents or independent contractors of GIP, or any other third party for which GIP acts under contract or as an agent, regardless of such persons or entitys location, to terminate any business relationship with GIP or otherwise encourage or hire (or assist anyone else to hire) any such person to commence any relationship as employee, agent or independent contractor for any other entity or individual. Employee further agrees that upon a violation of this section of this Agreement, the period during which the covenants herein apply will be extended by the number of days equal to the period of such violation.
10. Intellectual Property.
(a) Work Product. Employee acknowledges and agrees that all writings, works of authorship, technology, inventions, discoveries, ideas and other work product of any nature whatsoever that are created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Employee, individually or jointly with others, in the course of performing his employment duties under this Agreement and that directly relate to the business of GIP (regardless of when or where the Work Product is prepared or whose equipment or other resources is used in preparing the same) and all printed, physical and electronic copies, all improvements, rights and claims related to the foregoing, and other tangible embodiments thereof (collectively, Work Product), as well as any and all rights in and to copyrights, trade secrets, trademarks (and related goodwill), mask works, patents and other intellectual property rights therein arising in any jurisdiction throughout the world and all related rights of priority under international conventions with respect thereto, including all pending and future applications and registrations therefor, and continuations, divisions, continuations-in-part, reissues, extensions and renewals thereof (collectively, Intellectual Property Rights), shall be the sole and exclusive
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property of GIP. For purposes of this Agreement, Work Product includes, but is not limited to, GIP information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, original works of authorship, discoveries, specifications, customer information, client information, customer lists, client lists, marketing information, advertising information, and sales information.
(b) Work Made for Hire; Assignment. Employee acknowledges that, by reason of being employed by GIP at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is work made for hire as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by GIP. To the extent that the foregoing does not apply, Employee hereby irrevocably assigns to GIP, for no additional consideration, Employees entire right, title and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim and recover for all past, present and future infringement, misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit GIPs rights, title or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that GIP would have had in the absence of this Agreement.
(c) Further Assurances; Power of Attorney. During and after Employees employment, Employee agrees to reasonably cooperate with GIP to (a) apply for, obtain, perfect and transfer to GIP the Work Product as well as any Intellectual Property Right in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, executing and delivering to GIP any and all applications, oaths, declarations, affidavits, waivers, assignments and other documents and instruments as shall be requested by GIP. Employee hereby irrevocably grants GIP power of attorney to execute and deliver any such documents on Employees behalf in Employees name and to do all other lawfully permitted acts to transfer the Work Product to GIP and further the transfer, issuance, prosecution and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if Employee does not promptly cooperate with GIPs request (without limiting the rights GIP shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by Employees subsequent incapacity.
(d) No License. Employee understands that this Agreement does not, and shall not be construed to, grant Employee any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software or other tools made available to Employee by GIP.
11. Remedies Upon Breach. Employee acknowledges that damages at law will be difficult, if not impossible, to accurately measure in the event that Employee violates the terms of the confidentiality, non-solicitation, non-acceptance and/or intellectual property covenants as set
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forth in Sections 7 10 above (individually, a Covenant, and collectively, the Covenants), and that GIP would suffer substantial and irreparable damage as a result of such violation. Accordingly, Employee agrees that upon a violation of any of those Covenants, GIP will be entitled, at its option and in its sole discretion, upon application to a court of competent jurisdiction or other tribunal, to obtain injunctive relief to enforce the Covenants, which injunctive relief will be in addition to any other rights, remedies, damages or other forms of relief available to GIP.
12. General. Employee understands that each of the Covenants are an essential element of his relationship with GIP and that, but for Employees agreement to comply with such Covenants, GIP would not have agreed to enter into or to continue Employees employment (provided, however, that this Agreement is not intended to give Employee a right to employment). Such Covenants will be construed as agreements independent of any other provisions of Employees employment, and the existence of any claim or cause of action that Employee may have against GIP will not constitute a defense to the enforcement of any Covenants by GIP. Furthermore, Employee agrees that if any portion of a Covenant set forth herein is held to be unreasonable, arbitrary or against public policy, then such portion of the Covenant will be considered divisible as to time, geographic area or condition. If any court of competent jurisdiction or other tribunal determines any portion of a Covenant to be unreasonable, arbitrary or against public policy, then such portion may be reformed, to a lesser time period or geographic area or otherwise, so as to be reasonable, not arbitrary and not against public policy, and, as reformed, may be enforced against Employee and any such provision shall be severable from the other provisions of that Covenant and the other provisions of this Agreement, and such occurrence will not have the effect of rendering the provision in question invalid in any other case or circumstance, or of rendering invalid any other provision of this Agreement. Employee agrees that the Covenants are appropriate and reasonable when considered in light of the nature and extent of the business of GIP and Employees relationship with GIP. The waiver by GIP of Employees breach of any provision of the Covenants shall not be construed as a waiver of the other Covenants or any other provisions hereof or of any subsequent breach by Employee.
13. No Violation of Prior Agreements. Employee hereby represents and warrants that the exercise of the duties Employee performs for GIP, Employees execution of this Agreement or Employees performance hereunder do not and will not constitute a violation of any existing restrictive covenants given to any former or current employer or other third party.
14. Disclosure to Subsequent Employers. Employee agrees that he will disclose the obligations contained in this Agreement to any third party that offers to retain or employ Employee in anticipation that Employees relationship with GIP will cease, and to any third party that in fact does retain or employ Employee after Employees relationship with GIP ceases. Moreover, Employee expressly authorizes GIP to disclose to any such third party the existence and terms of this Agreement should Employee fail to do so.
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15. Enforceability by Assignee, Successor or Third-Party Beneficiary. Employee consents to the assignment hereafter, by merger or otherwise, of the protections afforded by this Agreement and/or any of the Covenants herein by the entity with which Employee has an employment relationship at the time that this Agreement is executed to any affiliate (through common ownership or otherwise) of GIP, or any assignee by purchase of GIP or of the assets and business of GIP, and expressly recognizes that this Agreement and the Covenants in this Agreement shall be enforceable by any such assignee or successor, as well as by any third-party beneficiary or entity affiliated with GIP through common ownership or otherwise.
16. Miscellaneous. This Agreement will be construed pursuant to and governed by the laws of the State of Florida except that the Arbitration Provision will be construed pursuant to the Federal Arbitration Act and the federal substantive law of arbitrability. This Agreement may be signed in multiple counterparts. It is the intention of the parties for facsimile, electronic or emailed signatures to be in full effect and sufficient for the enforcement of this Agreement. Any modification or amendment to this Agreement shall not be effective unless it is incorporated in a writing signed by both Employee and GIP. Notwithstanding anything to the contrary in this Agreement, to the extent that GIP, in the exercise of its reasonable judgment, shall determine that Section 409A of the Internal Revenue Code of 1986, as amended (the Code) applies to any amounts payable under this Agreement, any such amounts shall be paid in such fashion and at such times so as to ensure that GIP and Executive are in compliance with Section 409A of the Code. In the event that GIP, in the exercise of its reasonable judgment, determines that any portion of the payments and benefits payable as a result of Employees separation from service under this Agreement are subject to the requirements of Section 409A of the Code, and that Employee is a specified employee within the meaning of Section 409A of the Code, then, to the extent required for compliance with Section 409A of the Code, any portion of the such payments or benefits that are subject to Section 409A of the Code and that would otherwise be payable or provided within the first six (6) months following such termination of employment shall be delayed, and paid in a lump sum, on the first regular payroll date of GIP following the six (6) month anniversary of Employees termination of employment (or the date of his death, if earlier than that anniversary).
17. Dispute Resolution.
(a) Arbitration. GIP and Employee agree that any dispute, controversy or claim arising out of or related in any way to Employees employment relationship with GIP, the termination of that relationship, this Agreement, and/or any breach of this Agreement, shall be submitted to and decided by binding arbitration in Hillsborough County in the State of Florida. By beginning or continuing employment with GIP, Employee accepts and consents to be bound by this agreement to arbitrate (the Arbitration Provision). This Arbitration Provision covers all grievances, disputes, claims or causes of action that otherwise could be brought in a federal, state or local court under applicable federal, state or local laws, arising out of or relating to Employees employment with GIP and the termination thereof, including claims Employee may have against GIP or against its officers, directors, supervisors, managers, employees or agents in their capacity as such or otherwise. The claims covered by this Arbitration Provision include, but are not limited to, claims for breach of any contract or covenant (express or implied); tort claims; claims for wages or other compensation due; claims for wrongful termination (constructive or actual);
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claims for discrimination or harassment (including, but not limited to, harassment or discrimination based on race, age, color, sex, gender, national origin, alienage or citizenship status, creed, religion, marital status, partnership status, military status, predisposing genetic characteristics, medical condition, psychological condition, mental condition, criminal accusations and convictions, disability, sexual orientation, or any other trait or characteristic protected by federal, state or local law); claims for violation of any federal, state, local or other governmental law, statute, regulation or ordinance; and claims or disputes concerning the validity, enforceability, arbitrability or scope of this Arbitration Provision. Claims not covered by this Arbitration Provision are claims for workers compensation or unemployment compensation benefits; at GIPs sole option, claims by GIP for injunctive or other equitable relief for the breach or threatened breach of the Covenants above; and any other claims that, as a matter of law, GIP and Employee cannot agree to arbitrate. Nothing herein shall impair Employees right to report possible violations of law to any government agency or cooperate with any agencys investigation.
GIP and Employee expressly intend and agree that: (a) class, collective and/or representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Arbitration Provision; (b) Employee will not assert class, collective and/or representative action claims against GIP or its officers, directors, supervisors, managers, employees or agents in arbitration or otherwise; and (c) Employee shall only submit his own, individual claims in arbitration and will not seek to represent the interests of any other person. Further, GIP and Employee expressly intend and agree that any claims by Employee will not be joined, consolidated or heard together with claims of any other employee.
The Arbitrator shall apply the substantive law of the State of Florida or federal law (and the law of remedies, if applicable) as applicable to the claims asserted and shall apply the same rules of evidence as a federal court. Arbitration shall be administered in accordance with the AAA Employment Arbitration Rules in effect at the time the arbitration is commenced. To the extent not provided for in the AAA Employment Arbitration Rules, the Arbitrator has the power to order discovery upon a showing that discovery is necessary for a party to have a fair opportunity to present a claim or defense, and the Arbitrator shall decide all discovery disputes. Employees agreements to arbitrate and participate only in his individual capacity are contracts under the Federal Arbitration Act and any other laws validating such agreements. No failure to strictly enforce these agreements will constitute a waiver or create any future waivers. If any part of this Arbitration Provision is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable portion shall be severed and such adjudication shall not affect the validity of the remainder of this Arbitration Provision and/or this Agreement. Any arbitral award determination shall be final and binding upon the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(b) Injunctive Relief. Nothing in the Arbitration Provision and/or this Agreement shall prevent GIP from applying to and obtaining from a court of competent jurisdiction a writ of attachment, a temporary restraining order, a permanent restraining order, a temporary injunction, a permanent injunction, or other injunctive relief available to safeguard and protect GIPs interests, including but not limited to GIPs interests in the Covenants contained
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herein. Any action, suit or other proceeding initiated for these purposes shall be brought in the State of Florida in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida or in the United States District Court for the Middle District of Florida and Employee agrees to submit himself to the exclusive personal jurisdiction and venue of those courts for such purposes.
c) WAIVER OF JURY TRIAL. GIP AND EMPLOYEE UNDERSTAND AND AGREE THAT THEY ARE WAIVING ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED IN ANY WAY TO EMPLOYEES EMPLOYMENT RELATIONSHIP WITH TRENAM, THE TERMINATION OF THAT RELATIONSHIP, THIS AGREEMENT, AND/OR ANY BREACH OF THIS AGREEMENT. GIP AND EMPLOYEE EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE WAIVING ANY RIGHT THEY MAY HAVE TO A JURY TRIAL BY SIGNING THIS AGREEMENT.
Dated this 20th day of December, 2019.
DAVID SOBELMAN |
/s/ David Sobelman Signature
David Sobelman Printed Name
|
GENERATION INCOME PROPERTIES, INC. |
/s/ Patrick Quilty Signature of Employer Representative
Patrick Quilty Name of Employer Representative
Board Member Title Of Employer Representative |
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