EXHIBIT 10.10 Branch/Office Agreement by and between U.S. Trading Corporation
and Xxxxx X. Xxxxxx
U.S. TRADING CORPORATION
BRANCH OFFICE AGREEMENT
AGREEMENT dated this 1st day of October 2001, set forth below by and among U.S.
TRADING CORPORATION, a New York company ("USTC"), with its main office at 000
Xxxxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxx Xxxx 00000 and the
individua1(s) set forth below, (the "Managers), jointly and severally:
Xxxxx X. Xxxxxx
USTC is a securities broker dealer registered with the U.S. Securities and
Exchange Commission ("SEC") and various states and is a member of the National
Association of Securities Dealers (the "NASD").
The Managers wish to establish an office of USTC (the "Office") at the location
set forth below:
Xxxxx X. Xxxxxx
00000 Xxxxx Xxxx Xxxx Xxxxxxx
Technology Center #22
Draper, Utah 84020
IT IS THEREFORE, AGREED AS FOLLOWS:
1. NATURE OF RELATIONSHIP. USTC hereby retains the Managers to
assist USTC in developing and managing USTC securities
business and to provide supervisory functions at the Office
location at the previously agreed upon pricing schedule. The
Managers hereby accept such retention and agree to serve in
such capacity and devote their full time and efforts to USTC's
securities business operated at the Office. Managers shall
each be bound by USTC's Written Supervisory Procedures (the
"WSP") and any other previously agreed upon agreements.
Additionally, Managers shall each be an associated person of
USTC duly registered with the NASD and such states as may be
required.
2. THE OFFICE. Managers shall supervise the Office or, if
required by any federal, state, or self-regulatory
organization, law, rule or regulation, Managers shall appoint
an office manager for the Office acceptable to USTC who shall
be an approved person duly registered with the NASD with
authority to carry out the supervisory responsibilities
assigned to the a Office by USTC.
3. REPRESENTATIONS OF MANAGERS. Each Manager jointly and
severally, represents, warrants and covenants to USTC as
follows:
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(a) He is duly qualified to render services to USTC as
contemplated herein;
(b) He has never been suspended or censured by any
federal, state or regulatory authority nor is he a
statutorily disqualified person as defined under
Section 3(a)(39) of the Securities Exchange Act of
1934 nor is he under any contractual or legal
restriction that would in any way impair his ability
to comply with the provisions of this Agreement;
(c) He shall comply with and abide by all federal, state
and self-regulatory organization laws, rules and
regulations and the policies and procedures of USTC
and the decision of the appropriate officer of USTC
concerning all compliance matters; and
(d) He holds all material licenses including Series 7
necessary to perform his obligations hereunder.
4. DUTIES OF MANAGERS. Managers, jointly and severally, covenant and
agree, during the term of this Agreement, to render the following
services:
(a) Hire, supervise and terminate, if required, qualified
personnel located at the Office; (with the written approval of
USTC)
(b) Insure that the Office shall be used solely for the operations
of USTC's securities business;
(c) Maintain the Office at a location reasonably acceptable to
USTC and provide all furniture, fixtures and equipment
necessary to operate the Office. The foregoing shall be
subject to:
(i) USTC's compliance with restrictions that may be
imposed upon its operations by the NASD, and
(ii) The right of USTC to terminate at any time, the
employment of all personnel with or without cause.
Further, after proper investigation, all persons
recommended by Managers, including clerical
employees, must be submitted for approval in advance
by USTC, and cannot commence their association or
employment until duly licensed as required by the
NASD.
5. APPROVAL OF CERTAIN ACTIVITIES. Managers must obtain USTC's written
approval for each of following activities to be carried out at the
Office:
(a) The expenditure of any funds, reimbursable to Managers by USTC
(b) Any change in the nature or type of business activity carried
out at the Office; and
(c) The entry into any agreement or obligation or creation of any
liability, that is binding upon or otherwise affects USTC or
any of its affiliates.
6. COMPENSATION. For the services under this Agreement, Managers shall
receive the compensation set forth on the previously agreed upon
pricing schedule.
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7. OFFICE EXPENSES. Managers shall each, jointly and severally, have
complete financial responsibility for the operation of the Office and
shall be responsible for, and promptly discharge all expenses, claims,
obligations, charges and liabilities incurred in connection with the
operation of the Office, including attorneys' fees and expenses. Any
charges and expenses incurred by USTC on behalf of the Office may be
charged to Managers and shall then be paid by Managers monthly, except
that at the option of USTC any of the charges and expenses for which
USTC may be liable, including compensation, benefits, taxes and charges
of any other kind or nature payable to personnel employed at the
Office, may be paid by USTC directly and deducted from any payment
otherwise due Managers under this Agreement.
8. TICKET CHARGES. The Office will be charged by USTC, for clearance and
execution services as set forth at the previously agreed upon pricing
schedule.
9. INSURANCE. Managers shall maintain such insurance, in amounts and
against risks, as is generally tamed by securities trading and
brokerage firms as well as such insurance as may be reasonably
necessary for the protection of USTC.
10. INDEMNIFICATION. Managers shall, each, jointly and severally indemnify
and hold harmless USTC, its officers, directors, members, shareholders,
controlling persons, employees, affiliates and agents against and in
respect of any claim, liability, or expense incurred in connection
with:
(a) Any breach, misrepresentation, or omission, of any agreement,
representation, warranty, covenant, term or condition on the
part of Managers to be performed, fulfilled or complied with
under this Agreement;
(b) Any (i) unauthorized actions, (ii) violations of any laws,
rules or regulations under federal or state law or promulgated
by any selfregulatory organization or of the policies and
procedures of USTC, or (iii) misconduct or breach of fiduciary
duty by a Manager;
(c) Any proceedings, demands assessments, judgments, costs and
expenses, including reasonable legal fees and costs of
investigation incident to the foregoing.
Further any amounts due USTC, or any of its affiliate under this Agreement may
be set off against any amounts due Managers or any affiliate of Managers
11. PROPRIETARY MARKS. Managers acknowledge that USTC is the owner of its
name and all logos and marks used for its business activities and they
will not use USTC's name, logos or marks for any other purpose except
in connection with the business of the Office. Upon termination of this
Agreement, all use of USTC's logos and marks will immediately cease.
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12. NON-COMPETITION. Managers, jointly and severally, agree and covenant
that, during the term of this agreement and three years thereafter,
they shall not:
(a) Engage in any business, anywhere, using the name "U.S. Trading
Corp.", or the name of any affiliate of USTC.
(b) Solicit or enter into any agreement or arrangement with any
trader, member, employee, independent contractor or associated
person of USTC or any of its affiliates, or anyone who
occupied such position during the year preceding the
termination of this Agreement.
The foregoing restrictive covenant contained in Section 12(b) shall not apply to
any trader, member, employee, independent contractor or associated person, who
was employed by Managers prior to the execution of this Agreement.
13. TERM. The term of this Agreement shall be for a period of three (3)
years commencing on the date hereof unless sooner terminated pursuant
to paragraph 14. Thereafter, this Agreement shall be automatically
renewable for successive one-year terms, unless terminated pursuant to
paragraph 14.
14. TERMINATION. This Agreement may be terminated as follows:
(a) By USTC upon 30 days' prior written notice, if any of the
Managers
(i) Fail to comply with or breach any of the material
terms of this Agreement or prior agreements;
(ii) Breach any material representation or warranty
contained in this Agreement;
(iii) Shall be convicted of a felony;
(iv) Shall engage in misconduct materially injurious to
USTC;
(v) Shall violate any federal state or self-regulatory
organization law, rule, or regulation, or the
policies and procedures of USTC;
(b) By the Managers upon 30 days' prior written notice, if USTC
(i) Fails to comply with or breach any of the material
terms of this Agreement or prior agreements;
(ii) Breaches any material representation or warranty
contained in this Agreement;
(iii) Shall be convicted of a felony;
(iv) Shall engage in misconduct materially injurious to
the Managers;
(v) Shall violate any federal, state or self-regulatory
organization law, rule, or regulation, or the
policies and procedures
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(c) By USTC or the Managers upon 10 days prior notice if the other
has violated any federal, state or regulatory law, rule
regulation or supervisory or compliance procedure of USTC
which has a material adverse effect on the operations of USTC
or the branch.
(d) By the USTC or the Managers whenever they shall mutually agree
in writing to terminate this Agreement.
15. ARBITRATION. Any controversy, claim or counterclaim arising out of this
Agreement shall be governed by arbitration. Arbitration shall be
conducted in New York City in accordance with the Rules of the NASD,
and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
16. CONFIDENTIALITY. Each Manager shall keep, and cause to keep,
confidential each and every term of this Agreement, including but not
limited to. Schedule A hereof, for ten years from the date hereof.
However, a Manager may disclose the terms hereof, to the minimum extent
required to governmental or regulatory authorities having legal right
to the information or pursuant to a valid subpoena.
17. BREACH. Managers agree that a breach of the restrictive covenants
contained in paragraphs 12 and 16 would result in immediate and
irreparable harm to USTC. If such breach occurs, Managers agree that in
addition to any other remedies available to USTC. Managers shall pay to
USTC:(a) for a breach of paragraph 12, one year's salary of the
relevant employee; and (b) for a breach of paragraph 16, one year's
compensation due Managers hereunder
18. SUCCESSORS. For the Managers, the rights under this Agreement shall not
be assignable and the duties shall not be assumed by another xxxxx,
except as otherwise contemplated in this Agreement.
19. NOTICES. All notices pursuant to this Agreement shall be in writing
(including telecopy or other similar writing) and shall be delivered by
hand, certified or registered mail, postage prepaid or telecopy to each
party at the address set forth below or at such other address or
telecopy number as either party may from time to time specify to the
other. Any notice given hereunder shall have been deemed to be given on
the date of mailing, personal delivery or telecopy thereof and shall be
conclusively presumed to have been received on the third business day
following the date of mailing or, in the case of personal delivery or
telecopy, the day of delivery thereof.
20. ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement constitutes
the entire understanding between the parties, and superseding all prior
negotiations and agreements relating to this subject matter. This
Agreement may only be amended by in writing, signed by all of the
parties. Any failure to pursue any remedy or waiver of any default
under or breach of any provision as this Agreement shall not be deemed
to be an election of available remedies or a waiver of any other
similar or different default or breach.
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21. SURVIVAL. The representations, warranties and covenants contained in
this Agreement shall survive the termination of this Agreement.
22. UNENFORCEABILITY. The unenforceability of any term of this Agreement
shall not affect any other term of this Agreement and the unenforceable
term shall be deemed replaced by a provision which is enforceable and
comes closest to the intention of the unenforceable term.
23. GOVERNING LAW. This agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without
regard to conflict-of-laws principles. The parties consent to the in
personam jurisdiction of the courts located in the City of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth below.
U.S. TRADING CORPORATION
By: /S/ XXXXXXX LANDING
---------------------------
Xxxxxxx Landing, President
MANAGER:
/S/ XXXXX X. XXXXXX
---------------------------
(Signature)
XXXXX X. XXXXXX
------------------
(Print Name)
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