Exhibit 10.30
CONSULTING AGREEMENT
This agreement (this "Agreement") is made this 8th day of February,
2005 (the "Effective Date") and when executed by the parties, will constitute an
agreement between FIRST MONTAUK FINANCIAL CORPORATION, with its principal place
of business at Parkway 109 Office Center, 000 Xxxxxx Xxxxxxx Xxxx, Xxx Xxxx, Xxx
Xxxxxx 00000 (the "Company") and Xxxxxxx Xxxxxxxx, with his residence at 0
Xxxxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000 (the "Consultant"), pursuant to which
the Company agrees to retain Consultant and Consultant agrees to be retained by
the Company under the terms and conditions set forth below.
1. Retention. The Company hereby retains Consultant to perform
consulting services related to the broker dealer business of the Company, solely
as directed by the Chief Executive Officer of the Company, and Consultant hereby
accepts such retention. Nothing herein shall require the Company to utilize or
implement Consultant's services in any specific situation. Subject to the terms
set forth below, Consultant shall furnish to the Company advice and
recommendations with respect to such aspects of the business and affairs of the
Company, as well as consultation regarding any operations of the business or
regulatory matters or litigation matters related to the Company's business
during the time that Consultant was an employee of the Company, as the Chief
Executive Officer or other members of senior management, from time to time,
shall reasonably request upon reasonable notice. Consultant shall deliver
services at Consultant's place of business, the Company's place of business, or
at various other sites as reasonably requested by the Company. The Company will
make appropriate office facilities available for Consultant's use.
2. Compensation. As compensation for the services described in
paragraph 1 above, and provided this Agreement has not been terminated, the
Company agrees to pay Consultant a retainer fee (the "Retainer Fee") of $12,645
per month during the Term (as defined in Paragraph 7 below) of this Agreement.
In addition to his compensation hereunder, the Company will reimburse Consultant
for any and all expenses incurred by Consultant in the performance of his duties
hereunder upon the provision by Consultant to the Company of reasonably detailed
receipts; provided, however, that Consultant shall not incur any single expense
in excess of $1,000 or aggregate expenses in excess of $2,500 in any month
without the prior written approval of the Company. Such reimbursement shall
cumulate and be paid on a monthly basis. During the Term, Company shall pay
Consultant all Retainer Fees due on the last day of each month for which said
Retainer Fee is due. Consultant shall be responsible for the payment of all
federal, state and local taxes which may be payable in connection with the
receipt of compensation hereunder.
3. Relationship. Consultant shall use his best efforts and shall devote
such time and effort to the performance of his duties hereunder as is reasonably
necessary for such performance. Consultant is an independent contractor and not
an employee, agent or representative of the Company. Consultant has no authority
to bind the Company to any obligation or agreement. Consultant expressly agrees
that he shall at all times advise all third parties contacted in furtherance of
this Agreement that he is an independent contractor with no authority to bind
the Company. Subject to the last sentence of Section 4, nothing is this
Agreement shall prohibit Consultant from pursuing other employment
opportunities.
4. Covenants. Consultant shall coordinate his activities with the
Company and report to the Chief Executive Officer of the Company. All activities
of Consultant hereunder shall be conducted at the direction of the Chief
Executive Officer of the Company. During the term hereof, neither Consultant nor
any affiliate, partner, employee, agent or representative of Consultant, shall
render the same or similar services to any business, entity or person engaged in
any business which is the same as or similar to or competitive with, the
businesses of the Company or his subsidiaries.
5. Confidentiality. (a) During the Term and for a period of five years
thereafter, Consultant shall hold Company's Confidential Information in strict
trust and confidence and avoid the disclosure or release thereof to any other
person or entity by using at least the same degree of care as it uses to avoid
unauthorized use, disclosure, or dissemination of his own Confidential
Information of a similar nature, but not less than reasonable care, (ii) not use
the Confidential Information for any purpose whatsoever except as expressly
contemplated under this Agreement, and (iii) not to, directly or indirectly,
copy, reproduce, use, publish, misappropriate, assign, or otherwise transfer or
disclose to any person the Confidential Information, other than as permitted
pursuant to the terms of this Agreement, regardless of whether such information
was actually delivered to Consultant prior to the effective date of this
Agreement.
(b) Notwithstanding the foregoing, Consultant shall not be required to
maintain confidentiality with respect to information (i) which is or becomes
part of the public domain not due to the breach of this agreement by Consultant;
(ii) of which he had independent knowledge prior to disclosure by the Company;
(iii) which comes into the possession of Consultant in the normal and routine
course of his own business from and through independent non-confidential
sources; or (iv) which is required to be disclosed by Consultant by governmental
requirements. If Consultant is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of his dealings with the Company or his
representatives, Consultant shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
6. Non-Assignment. This Agreement may not be transferred, assigned or
delegated by any of the parties hereto without the prior written consent of the
other party hereto.
7. Term and Termination. This Agreement shall commence on the Effective
Date and is for an initial term of 24 months (the "Term"). Paragraphs 5, 6, 8,
9, and 10 shall survive the expiration or termination of this Agreement under
all circumstances. Upon the expiration or termination of this Agreement, (a)
each party shall return the other's Confidential Information in his possession
or control, (b) all amounts not disputed in good faith that are owed by each
party to the other party under this Agreement which accrued before such
termination or expiration will be immediately due and payable and (c) Consultant
shall deliver to Company all deliverables completed and accepted up to the date
of termination and Company shall have all right, title and interest thereto. The
Company shall not have the right to terminate this Agreement and the obligations
hereunder except in the event of a material breach by Consultant of the terms
hereof, which breach continues for a period of at least thirty (30) days after
written notice of demand for compliance or substantial performance has been
delivered to Consultant by the Company, specifying the manner in which
Consultant has failed substantially to perform or comply.
8. Notices. Any notices hereunder shall be sent to the Company and to
Consultant at their respective addresses set forth above. Any notice shall be
given by certified mail, return receipt requested, postage prepaid, overnight
courier or personal delivery. Notices shall be deemed to have been given when
deposited in the United States mail or delivered to a nationally-recognized
courier service. Either party may designate any other address to which notice
shall be given, by giving written notice to the other of such change of address
in the manner herein provided.
9. General. This Agreement has been made in the State of New Jersey and
shall be construed and governed in accordance with the laws thereof without
giving effect to principles governing conflicts of law. This Agreement contains
the entire agreement between the parties, may not be altered or modified, except
in writing and signed by the party to be charged thereby, and supersedes any and
all previous agreements between the parties relating to the subject matter
hereof. This Agreement shall be binding upon the parties hereto and their
respective heirs, administrators, successors and permitted assigns. The failure
or neglect of the parties hereto to insist, in any one or more instances, upon
the strict performance of any of the terms or conditions of this Agreement, or
their waiver of strict performance of any of the terms or conditions of this
Agreement, shall not be construed as a waiver or relinquishment in the future of
such term or condition, but the same shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused their respective duly
authorized representatives to execute this Agreement as of the Effective Date.
FIRST MONTAUK FINANCIAL CORP.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President
CONSULTANT
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
