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EXHIBIT 10.21
NATIONAL SECURITIES CORPORATION
0000 XXXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXXXXXXX 00000-0000
October 27, 1995
Xx. Xxxxxxx X. Xxxxx
00 0/0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxx:
National Securities Corporation, a Washington corporation, is
registered as a broker-dealer with the Securities and Exchange Commission
("SEC") and is a member organization of the National Association of Securities
Dealers, Inc. ("NASD"). This letter agreement ("Agreement") sets forth the
terms on which National has agreed to engage Xxxxxxx X. Xxxxx ("Xxxxx") and
other individuals recruited by Xxxxx to serve and act as independent
contractors and registered representatives of National (all of whom are, with
Xxxxx, collectively called "Xxxxx Group Members"). A list of the initial Xxxxx
Group Members is attached hereto as Exhibit A.
1. National shall establish a division of National called "Xxx
Xxxxx Research" ("Xxxxx Research") for the purpose of conducting the research,
advisory, and brokerage business heretofore conducted by Xxxxx and the Xxxxx
Group Members at other firms. Xxxxx shall be designated as a Managing Director
of Xxxxx Research, and all of the activities rendered by all of the Xxxxx Group
Members pursuant to this Agreement shall be in their capacity as registered
representatives of Xxxxx Research. Xxxxx Research shall engage in the
business, and only in such business, in which National is authorized by virtue
of its registrations with the SEC and the NASD, and in accordance with all
applicable laws, rules, and regulations to which National is subject. In all
of these activities pursuant to this Agreement, all Xxxxx Group Members shall
identify themselves, and any material transmitted by them to any present or
potential customer shall identify them, as members of "Xxx Xxxxx Research, a
Division of National Securities Corporation." National agrees that it will
make appropriate references to Xxxxx Research in its communications with
customers and the investment community at large. Nothing in this
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October 27, 1995
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Agreement shall obligate Xxxxx Research to maintain the engagement of any or
all the Xxxxx Group Members; and Xxxxx Research shall be free to terminate the
engagement of any Xxxxx Group Member, and to engage new registered
representatives, at any time or times with the prior consent of National, which
consent shall not be unreasonably withheld.
2. Xxxxx acknowledges that in addition to registrations of
National, the business in which Xxxxx Research will engage will require initial
registration or the transfer of existing registrations under federal or state
law of various Xxxxx Group Members. Xxxxx shall supply to National on a timely
basis a list of the states in which registration of National or any Xxxxx Group
Member is required for the business in which Xxxxx Research will engage, and
the status of such registrations, if any. Xxxxx agrees that neither Xxxxx
Research nor any Xxxxx Group Member shall perform any act in any jurisdiction
on behalf of Xxxxx Research until all applicable registration requirements in
such jurisdiction have been satisfied. National shall promptly apply for such
registrations or transfers of registrations as shall be necessary to enable
Xxxxx Research to conduct the business contemplated by this Agreement, and
shall use its best efforts to cause such registrations and transfers of
registration to become, and to remain, effective. The cost of such
registrations and transfers shall be borne by Xxxxx Research.
3. (a) The expenses of operation of Xxxxx Research shall be borne
by Xxxxx Research and National as follows:
(i) Xxxxx Research shall be responsible for rent for
office space, telephone services, and electronic quotation services; monthly
printing, handling, and postage charges arising out of the distribution of
printed research materials by Xxxxx Research to its customers; the costs of
registration and transfers of registration; and the salary and related expenses
arising from the employment of Xx. Xxxxx Xxxxx ("JD's Salary").
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October 27, 1995
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(ii) Xxxxx Research shall also be responsible for all
salaries and related charges including but not limited to withholding taxes and
social security taxes and full employee benefits (such as health and insurance
benefits) for any and all employees of Xxxxx Research, and all costs arising
from travel and entertainment on business of Xxxxx Research; all monthly
printing, handling, and postage charges arising out of the distribution of
printed research materials by the Xxxxx Research; and the cost of registrations
and transfers of registration to the extent provided in Paragraph 3 hereof.
(iii) National shall be responsible for the costs,
handling, and postage charges arising out of the distribution of printed
research materials by Xxxxx Research to customers of National. In addition,
during the first six months of this Agreement, National shall pay Xxxxx
Research $25.000 per month in order to reimburse Xxxxx Research for the cost of
the preparation of printed research materials. On or before November 30, 1995,
Xxxxx and National shall set a benchmark for monthly revenues, which if
achieved by the Xxxxx Group will require National to continue the purchase of
such printed research materials beyond such six month period. Assuming such
benchmarks are met, then from May 1, 1996 through October 31, 1996, National
shall pay Xxxxx Research $10,000 per month as reimbursement for such costs.
(iv) National understands that Xxxxx Research will be
leasing office space and computer equipment and procuring telephone and
quotation services in the New York City area. In consideration for National's
agreement to obtain such leases and services in its name, Xxxxx and Xxxxx
Research hereby agree to indemnify and hold harmless National against any and
all claims, expenses, and liabilities (including, but not limited to,
reasonable attorneys' fees and expenses), as and when incurred, arising from
such leases and services. As security for such indemnification obligation,
Xxxxx shall pledge to National such number and kind of securities as reasonably
requested from time to time by National.
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October 27, 1995
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(b) The profit and income items arising from the operations of Xxxxx
Research shall be allocated between National and Xxxxx Research as follows:
(i) OTC and NASDAQ Trading: If during the term of this
Agreement a trader is stationed at the office of Xxxxx Research the profits and
losses from such OTC and NASDAQ trading shall be determined by agreement
between the parties.
(ii) Fee Income: 85% of fees (including fees for acting
as a placement agent in a private placement and syndicate designation
introduced or arranged by Xxxxx Research), after deduction of expenses directly
attributable to the transaction from which such fee income is derived in each
case, shall be allocated to Xxxxx Research and 15% to National. Payment of any
such fee income shall be made as soon as practicable but in no event later than
the 15th day of the month following the receipt thereof.
(iii) Commissions: National shall be entitled to receive
30% of commissions (including selling commissions in underwritings) and the
balance shall be allocated to Xxxxx Research. Payment of the portion of
commissions due to Xxxxx Research shall be made on the payment dates generally
applicable to agents of National. In addition, Xxxxx Research shall be paid
commissions in accordance with the Commission Schedule set forth in Addendum A
attached hereto.
(iv) Underwritings: Xxxxx Research shall be entitled to
receive 70% of all management and underwriting fees (net of syndication fees to
others and subject to National's customary charges) and net expense allowances
from underwritings originated by Xxxxx Research, and National shall be entitled
to the remainder; and all other profit or loss from underwriting activities
other than selling commissions and trading profits which shall be allocated as
set forth in paragraph 3(b)(iii) shall be divided 70% to Xxxxx Research and 30%
to National. In the event that any underwriting, private placement, or other
engagement gives rise
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October 27, 1995
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to the delivery of warrants or other non-cash consideration, 80% thereof shall
allocable to Xxxxx Research and 20% to National. Consulting or other fees
arising directly or indirectly from underwritings introduced by Xxxxx Research
shall be allocated as provided in paragraph 3(b)(ii). Payment to Xxxxx
Research of any amount attributable to underwritings shall be made as promptly
as practicable after receipt thereof by National.
(c) National acknowledges that Xxxxx Research proposes to
employ Xx. Xxxxx Xxxxx at a salary of $120,000 per annum, all of which shall be
chargeable to Xxxxx Research, together with all related costs.
4. National agrees that it will make markets in such securities as
shall be determined by agreement between National and Xxxxx Research. National
shall have authority to oversee, and to determine position limits, in market
making transactions.
5. National shall cause its stock option committee to issue to
Xxxxx, options to acquire 80,000 shares of National at an exercise price of
$5.00 per share, which options shall vest in five equal amounts (of 16,000
shares each) at the end of the first, second, third, fourth, and fifth
anniversaries of the date of issuance; provided, however, that such options
shall not vest if Xxxxx is not employed by, or affiliated with, National on the
date of vesting.
6. In no event shall Xxxxx Research or any Xxxxx Group Member make
any expenditure or commitment to any third party in excess of $5,000 for which
National is responsible under this Agreement without the prior consent of
National (which consent shall not be unreasonably withheld); and Xxxxx Research
shall advise National on a current basis of all expenditures in excess of
$5,000 incurred by Xxxxx Research for which Xxxxx Research is responsible under
this Agreement. No member of Xxxxx Research shall conduct any business outside
of Xxxxx Research, and all of the business of Xxxxx Research shall be conducted
in accordance with rules
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October 27, 1995
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and regulations applicable to independent contractors of National generally, or
as may be prescribed by National specifically for employees of Xxxxx Research.
Xxxxx Research shall not accept business from any customer or otherwise conduct
business in any fashion, except in accordance with the terms of National's
Compliance Manual, a copy of which has been previously furnished to Xxxxx. In
all matters relating to compliance, the decision of the cognizant officer of
National shall be final. All decisions to participate in underwritings, as
underwriter, shall be made jointly.
7. In the event that the operations of Xxxxx Research shall require
commitments of capital or other expenditures by National not expressly provided
for in this Agreement, the parties hereto shall endeavor to negotiate in good
faith on the terms of such commitment or expenditure, but nothing herein shall
require National to commit to any capital or make any expenditure without its
consent.
8. Xxxxx represents that he is not, and no Xxxxx Group Member at
the time of his employment by Xxxxx Research will be, the subject of any
proceeding, existing or pending, whether civil (as it relates to the securities
industry) or regulatory, in any jurisdiction, except as disclosed in the Form
U-4's. In the event of any such proceeding in the future involving Xxxxx
Research or any Xxxxx Group Members, and arising out of the activities
contemplated by this Agreement (in contradiction to activities arising out of
the prior employment of any Xxxxx Group Member) the cost of such proceeding
(including but not limited to reasonable legal fees and expenses) shall be
borne by National and the Xxxxx Group in proportion to their respective
interests in the profits from the activity giving rise to the proceeding.
Xxxxx represents and warrants to National that (a) neither he nor any Xxxxx
Group Member is under any contractual or other restriction or obligation which
is inconsistent with the execution of this Agreement, the performance of his or
their obligations hereunder, or the other rights of the National hereunder
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October 27, 1995
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and (b) neither he nor any Xxxxx Group Member is under any physical or mental
disability that would hinder his or their performance of his or their
obligations under this Agreement.
9. Xxxxx shall indemnify and hold harmless National and its
directors, shareholders officers, and employees against any and all claims,
expenses, and liabilities (including but not limited to reasonable attorneys'
fees and expenses) which may arise out of any claim by the present or former
employer of Xxxxx against National or that the arrangements contemplated by
this Agreement involve any violation of fiduciary duty owed by Xxxxx or any
Xxxxx Group Member to such employer.
This Agreement shall continue in effect until terminated by either party
on not less than 60 days' prior written notice, or until terminated by mutual
consent of the parties. Termination shall not relieve any party to this
Agreement of any obligation arising prior to the date of termination, but if a
notice of termination is given by either party, the Xxxxx Group Members may not
undertake any obligation in the period prior to the date of termination outside
of the normal course of business as previously conducted; and any income
received or profits earned after such notice from activities begun but not
completed after such notice shall be allocated between the parties in the
proportions that would have been applicable if such notice had not been given.
In the event of termination, National shall not solicit any agent of Xxxxx
Research to remain with National, but nothing in this Agreement shall preclude
National from continuing the engagement of any agent of Xxxxx Research who
shall solicit National to continue such engagement. In the event that Xxxxx
Group shall terminate this Agreement prior to the date on which operations are
to begin, any costs paid or incurred by National for the purpose of providing
facilities or services to Xxxxx Research shall be borne by Xxxxx.
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11. As used herein, all references to Xxxxx Group Members shall
include all independent contractors and registered representatives of National
at any time serving as agents of Xxxxx Research.
12. Any dispute between the parties arising out of this Agreement
shall be settled by arbitration in New York City in accordance with the rules
of the NASD and any decision or judgment rendered in any such arbitration may
be entered in any court of competent jurisdiction. In any such arbitration
each party shall pay its own expenses and the cost and expenses of the
arbitrator shall be divided equally between the parties.
If the foregoing conforms to your understanding, please sign and return
the enclosed copy of this document to National, whereupon it shall constitute a
binding agreement between you and us.
Sincerely yours,
NATIONAL SECURITIES CORPORATION
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By:
Name:
Title:
CONFIRMED:
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Xxxxxxx X. Xxxxx
