XXXXX FINANCIAL GROUP, INC.
REGISTERED REPRESENTATIVE/INDEPENDENT CONTRACTOR AGREEMENT
THIS XXXXX FINANCIAL GROUP, INC. REGISTERED
REPRESENTATIVE/INDEPENDENT CONTRACTOR AGREEMENT (this
"Agreement") is made this _____ day of _____, _____ to be
effective as of the _____ day of ______,_____(the
"Effective Date"), by and between XXXXX FINANCIAL GROUP,
INC., a Georgia corporation (the "Company"), and
____________ ("Independent Contractor").
WHEREAS, the Company is registered as a securities
Broker-Dealer with the Securities and Exchange Commission
(the "SEC"), is a member of the National Association of
Securities Dealers, Inc. (the "NASD"), and conducts a
retail-securities business; and
WHEREAS, Independent Contractor is registered with the
NASD as a "Registered Representative" (NASD Series 7) and
desires to conduct securities brokerage through and on
behalf of the Company as an independent contractor to the
Company; and
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Engagement of Independent Contractor-
(a) The company hereby engages Independent
Contractor as Registered Representative
of the Company for a period of time
commencing as of the Effective Date and
ending at such time as Independent
Contractor's engagement hereunder is
terminated pursuant to the terms hereof.
(b) Independent Contractor shall serve under
this Agreement as an independent
contractor, and nothing contained in
this Agreement shall be construed to
create the relationship of employee and
employer between Independent Contractor
and the Company. Nothing contained in
this agreement is to be construed to
make Independent Contractor the agent or
legal representative of the Company for
any purpose, and the Independent
Contractor does not have the right,
power, or authority whatsoever to
assume, create or incur any obligation
or responsibility for or on behalf of
the Company, or to bind the Company in
any manner whatsoever, except as herein
expressly provided. Independent
Contractor covenants that it shall not
represent, at any time, either orally or
in writing, to anyone that it has any
right, power or authority not expressly
granted to it by this Agreement.
2. Company Compliance/Written Supervisory
Procedures.
(a) Independent Contractor will comply with
all applicable laws and regulations of
federal and state governmental and
regulatory agencies, including, but not
limited to compliance with both the
Statement of Policy of the Securities
and Exchange Commission and the Rules of
Fair Practice of the National
Association of Securities Dealers.
(b) Independent Contractor will comply with
all applicable Company policies and
procedures as established, from time to
time, by the Company. The Company's
Registered Representative's Compliance
Manual (the "Manual") contains the
Company's internal rules and policies
and references the rules and regulations
of various regulatory authorities.
Copies of the Manual are located at the
Company's corporate offices and have
previously been provided to Independent
Contractor. Independent Contractor, by
his execution of this agreement, hereby
represents and warrants that he has read
and understands the Manual and covenants
and agrees to abide by its terms.
(c) Independent Contractor agrees that,
except in accordance with the published
policy of the Company, or alternatively
upon receipt of written approval from
the Company, that for so long as I
remain a registered representative of
the Company, I will not conduct or
engage in any securities business, in
any capacity, through or on behalf of
any other entity other than the Company.
(d) Independent Contractor agrees to
subscribe for pay any charges applicable
to a security broker errors and
omissions liability policy as required
by the Company.
3. Benefits/Personnel Policies.
(a) Independent Contractor shall not be
entitled to participate in any profit
sharing or pension retirement plan,
vacation, holiday pay, sick pay,
insurance coverage, or other benefits
intended for the Company's employees.
While acting within the scope of his
engagement hereunder, Independent
Contractor's conduct shall be
businesslike and professional as is
appropriate for a person in his
position, and Independent Contractor
shall at all times and in all respects
perform this Agreement as complies with
good and lawful business and ethical
practices.
(b) Independent Contractor understands and
agrees that he is responsible for all
federal and state income taxes and
assessments imposed by the Internal
Revenue Service and or any State
Department of Taxation or the like, that
he is responsible for all self-
employment taxes, and that he is
responsible for the accurate reporting
of all income and remuneration received
as an Independent Contractor for the
Xxxxx Financial Group.
4. Commissions.
Independent Contractor shall be compensated
by the Company exclusively pursuant to the
schedule of rates and changes attached
hereto as Schedule A, and otherwise as
follows: Independent Contractor shall be
paid no later than the 10th calendar day of
each month with respect to transactions
effectuated by Independent Contractor and
"Settled" (as defined below) during the
previous calendar month. Independent
Contractor understands that his right to
earn a commission with respect to any
transaction effectuated by Independent
Contractor does not arise until such time as
transaction is "Settled," Meaning: (I) such
commission income is generated and remitted
to the Company by its clearing agent, and
(ii) the Company receives confirmation of
cleared funds with respect to such
commissions. On a monthly basis, the
company shall furnish Independent Contractor
with an itemized statement showing the
commissions owed Independent Contractor for
the previous calendar month, and an itemized
accounting of all expenses deducted
therefrom, such expenses to include but not
be limited to the expenses set forth on
Schedule A attached hereto.
5. Customer Complaints/Regulatory Inquiries.
(a) Independent Contractor shall promptly
inform the Company of any customer
complaints (whether written or oral),
lawsuits, arbitrations and/or any
inquiry by any regulatory authority,
including the SEC or the NASD
(collectively referred to herein as
"Complaints") naming or involving the
Company or Independent Contractor, or
any person working at, conducting
business for, or associated with the
Company, with respect to which
Independent Contractor becomes aware or
has knowledge.
(b) Independent Contractor agrees that the
Company is authorized to direct and
control the strategy to be employed with
respect to responding to, defending or
otherwise handling Complaints, including
whether to offer a settlement and the
amount of or other particulars with
respect to such settlement, and may
otherwise resolve Complaints in such
manner as the company deeds appropriate.
Without limiting Independent
Contractor's indemnity obligations set
forth in Section 11 hereof, any payment
made or expense incurred (including
attorney's fees, costs, forum fees, and
filing fees) by the Company in
connection with investigating,
responding to, or handling a Complaint,
including any settlement thereof,
involving or otherwise attributable to
Independent Contractor (collectively,
"Complaint Expenses") shall be paid by
the Contractor and the Contractor shall
hereby indemnify the Company for such
Complaint Expenses, whether or not the
Independent Contractor continues to be
associated with the Company. The
company is hereby authorized by the
Independent Contractor to deduct such
Complaint Expenses from any commissions
due Independent Contractor pursuant to
Section 4 hereof, and Independent
Contractor shall not be paid any further
commissions until such time as all
Complaint Expenses have been satisfied
from such commissions. The Company's
conduct in investigating, responding to,
defending or otherwise handling any
Complaint and deducting any Complaint
Expenses from Independent Contractor's
commissions shall, in absence of a
showing by Independent Contractor of the
Company's fraud or bad faith,
conclusively be deemed to have been
appropriate, reasonable, in good faith
and in accordance with the terms and
intent of this Agreement, it being the
intent of the parties hereto that this
provision shall not require the company
to prove the legal validity of any
Complaint in order to recover any
Complaint Expenses form Independent
Contractor hereunder.
6. Representations and Warranties of Independent
Contractor.
Independent Contractor represents and warrants to
the Company as follows:
(a) That he is duly licensed as a
"Registered Representative" with the
NASD and is not currently and has never
been subject to a suspension or
limitation on his ability to serve as a
Registered Representative; that he has
not previously been the subject of any
investigation by any regulatory
authority for violations of securities
laws or industry rules; and that he has
not had any registration or license
suspended, nor has he been fined, by the
NASD, the SEC, any State, or any other
applicable regulatory authority for
violations of securities laws;
(b) That he is fully familiar with, and has
working knowledge of, all the rules,
regulations, constitutions and by-laws
and statutes of all regulatory
authorities which regulate securities
markets, brokers and dealers, exchanges
and clearing houses (collectively
referred to hereafter as the "Applicable
Rules"), and that, during the term
hereof, he will fully comply therewith;
(c) That no representations, warranties,
assurances or statements by Independent
Contractor in this Agreement and no such
statement contained in this document,
certificates, or other writings
furnished or to be furnished by
Independent Contractor to the Company or
any of its representatives pursuant to
the provisions hereof contains or will
contain any untrue statement of material
fact, or omits or will omit to state any
fact necessary, in light of the
circumstances under which it was made,
in order or make the statements herein
or therein not misleading.
7. Covenants of Independent Contractor.
Independent Contractor covenants and agrees as
follows:
(a) Independent Contractor covenants and
agrees that he shall not accept any
purchase or sale transaction unless
sufficient funds, equity or securities
to consummate such transaction are in
the account for which the order is
taken, nor shall Independent Contractor
commingle funds or securities purchases
from or for investors with Independent
Contractor's own funds or securities
purchases, whether in a personal,
business, trust, or special account;
(b) Independent Contractor covenants and
agrees that he shall not, at any time
during the term of this Agreement, be in
violation of any applicable local, state
or federal law, ordinance, regulation,
order, injunction or decree or nay other
requirement of any governmental body,
agency, or authority or court binding on
Independent Contractor, or any other
Applicable Rule, as currently instituted
or as hereafter may be promulgated from
time-to-time.
8. Non-Solicitation.
Independent Contractor agrees that, during the
term of his engagement as an independent
contractor hereunder, and for one (1) year
thereafter, Independent Contractor will not
solicit for employment, directly or through or on
behalf of any other party, any persons who are
then employees of the Company, or induce or
attempt to induce the termination of any such
person's employment with the Company.
9. Confidentiality and Nondisclosure.
Independent Contractor acknowledges and agrees
that, during the term of this Agreement, he will
have access to trade secrets and other
confidential information unique to the Company's
business and that the disclosure or unauthorized
use of such trade secrets or confidential
information by Independent Contractor will injure
the Company's business. Therefore, Independent
Contractor agrees that he will not, at any time
during the term of this agrees that he will not,
at any time during the term of this Agreement and
for ten (10) years thereafter, use, reveal or
divulge any Confidential Information (as defined
herein). For purposes of this Section,
"Confidential Information" shall mean information
which is confidential and constitutes a valuable
asset of the Company by reason of the material
investment of the Company's time and/or money in
the production of such information including, but
not limited to, trade secrets, lists of actual or
potential customers or suppliers, financial data,
a formula, pattern, compilation, program, device,
method, technique and business plans.
Independent Contractor also agrees, upon
termination of his engagement as an Independent
Contractor hereunder, to return any and all
documents in his possession which are owned by
the Company or which contains Confidential
Information.
10. Term and Termination.
This agreement shall be terminable at any time,
with or without cause, by either party hereto
upon five (5) days prior written notice to the
other party hereto; provided, however, that in
the event of a material breach by Independent
Contractor of this Agreement, this Agreement may
be terminated immediately by the Company upon
written notice to Independent Contractor.
11. Indemnification.
Independent Contractor agrees to indemnify,
reimburse, defend and hold harmless the Company,
and each of its directors, officers, employees,
affiliates, agents, representatives, successors,
and assigns, from and against any and all claims,
losses, costs, deficiencies, damages,
consequential damages, penalties, and liabilities
incurred, and all expenses including, but not
limited to, attorney's fees and disbursements
arising out of or otherwise with respect to (i)
any breach or inaccuracy of any representation or
warranty of Independent Contractor set forth in
this Agreement or in any other document,
instrument or agreement delivered pursuant
hereto, (ii)any breach of or noncompliance by
Independent Contractor with any covenant or
agreement of Independent Contractor set forth in
this Agreement, (iii)any other breach by the
Independent Contractor of this Agreement, and
(iv)any cost, expense, charge, or disbursement of
any kind incurred by the Company as a result of
any actions or inaction by a client serviced by
the Independent Contractor or whose account is
handled by the Independent Contractor, including
customer reneges, unsecured debit losses and
other transactional losses.
12. Assignability/Entire Agreement.
No rights, duties, or obligations under this
Agreement shall be assignable by Independent
Contractor without the prior written consent of
the Company. This Agreement contains the entire
agreement of the parties with respect to the
subject matter hereof. Other than as
specifically provided herein, it may only be
amended by an agreement in writing signed by each
of the parties hereto.
13. Notices.
All notices and other communications hereunder
shall be in writing and shall be deemed given
when delivered personally or when mailed by
registered or certified mail, return receipt
requested, to the parties at their respective
addresses set forth on Schedule B attached hereto
(or to such other address as any party hereto my
have furnished to the other by written notice
given in accordance herewith).
14. Arbitration/Applicable Law.
Other than as specifically provided in Section 15
below, the parties agree that any dispute between
them shall be settled by arbitration by the NASD
in accordance with NASD Code of Arbitration
Procedure. Any such arbitration hearing shall be
held in Atlanta, Georgia, with the parties hereto
splitting evenly all forum fees associated with
such arbitration. This Agreement has been
negotiated, drafted, and executed in the State of
Georgia, and will be performed within the State
of Georgia. Accordingly, this Agreement shall be
governed by and construed in accordance with the
laws of the State of Georgia, without regard to
conflict of law principles.
15. Specific Performance/Injunctive Relief.
Independent Contractor acknowledges that remedies
at law for any actual or threatened breach by it
of the covenants set forth in Sections 8 and 9 of
this Agreement would be in adequate and that the
Company shall be entitled to specific performance
of such covenants or injunctive relief against
activities in violation of aid covenants, or
both, by temporary or permanent injunction or
other appropriate judicial remedy, writ, or
order, in addition to any damages and legal
expenses (including attorneys' fees) which the
company may be legally entitled to recover, which
may be sought in any court of law having
jurisdiction to afford such relief, and
Independent Contractor hereby consents to such
relief being issued against it. The parties
hereto acknowledge and agree that any such
recourse to a court of law shall not be deemed a
waiver or modification of the arbitration
provisions of Section 14 above. The Company and
Independent Contractor acknowledge that the
covenants contained in Section 8 and 9 of this
Agreement shall be construed as agreements
independent of any provision of this or any other
contract between the Company and Independent
Contractor, and that the existence of any claim
or cause of action by a party hereto against the
other party hereto, whether predicated upon this
or any other contract, shall not constitute a
defense to the enforcement by the Company of said
covenants.
16. Invalidity of any Provisions.
It is the intention of the parties hereto that
the provisions of this Agreement be enforced to
the fullest extent permissible by the laws and
public policies of each state and jurisdiction in
which such enforcement is sought, but that the
unenforceability (or the modification to confirm
with such laws or public policies) of any
provision hereof shall not render unenforceable
or impair the remainder of this Agreement, which
shall be deemed amended to delete or modify, as
necessary, the invalid or unenforceable
provisions. The parties further agree to alter
the balance of this Agreement I order to render
the same valid and enforceable.
17. Survival/Waiver.
The provisions of Sections 8, 9 and 11 of this
Agreement shall survive the termination of this
Agreement. No waiver of any breach of this
Agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding
breach thereof or of any agreement or provision
herein contained. No extension of time for
performance of any obligation or acts shall be
deemed an extension of time for performance of
any other obligations or acts.
18. Responsibility for Compliance with Law.
Nothing in this Agreement shall be interpreted as
relieving Independent Contractor from his
obligations to comply with all applicable laws,
including the Securities Act of 1933, the
Securities Exchange Act of 1934, and the Rules
and Regulations promulgated thereunder, the laws
of the States in which Independent Contractor is
registered or licensed, and the rules,
regulations, interpretations and directives
issued by the NASD or the SEC or any other
securities exchanges.
IN WITNESS THEREOF, the undersigned have caused this
Agreement to be executed as of the date first written
above:
"The Company"
XXXXX FINANCIAL GROUP, INC.
By:_______________________
Name:_____________________
Title:____________________
"Independent Contractor"
By:_______________________
Name:_____________________
Title:____________________
