Exhibit 10.31
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of February , 2005 by and between
Victor K. Kurylak, residing at 26 Meadow Lane, Lebanon, New Jersey 08833
(hereinafter referred to as the "Employee") and First Montauk Financial Corp., a
New Jersey corporation with principal offices Parkway 109, Red Bank, New Jersey
07701 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, the Company, through its wholly owned subsidiary First Montauk
Securities Corp, is engaged in the investment banking and general securities
business as a registered broker-dealer; and
WHEREAS, the Company has employed the Employee since January 2004
pursuant to an employment agreement dated as of January 1, 2004 and desires to
continue to employ the Employee for the purpose of continuing to secure for the
Company the experience, ability and services of the Employee and to provide for
a change of Employee's employment status with the Company to include the
position of Chief Executive Officer; and
WHEREAS, the Employee desires to be employed by the Company, pursuant
to the terms and conditions herein set forth, superseding all prior oral and
written employment agreements, and term sheets and letters between the Company,
its subsidiaries and/or predecessors and Employee;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
ARTICLE I
DEFINITIONS
1.1 Accrued Compensation. Accrued Compensation shall mean an amount
which shall include all amounts earned or accrued through the "Termination Date"
(as defined below) but not paid as of the Termination Date, including (i) Base
Salary, (ii) reimbursement for business expenses incurred by the Employee on
behalf of the Company, pursuant to the Company's expense reimbursement policy in
effect at such time, (iii) vacation pay, and (iv) bonuses and incentive
compensation earned and awarded prior to the Termination Date.
1.2 Cause. Cause shall mean: (i) willful disobedience by the Employee
of a material and lawful instruction of the Board of Directors of the Company;
(ii) formal charge, indictment or conviction of the Employee of any misdemeanor
involving fraud or embezzlement or similar crime, or any felony; (iii) breach by
the Employee of any material provision of this Agreement; (iv) conduct amounting
to fraud, dishonesty, gross negligence, willful misconduct or recurring
insubordination; (v) excessive absences from work, other than for illness or
Disability; or (vi) unsatisfactory performance of duties; provided that the
Company shall not have the right to terminate the employment of Employee
pursuant to the foregoing clauses (i), (iii), (iv), (v) and (vi) above unless
written notice specifying such breach shall have been given to the Employee and,
in the case of breach which is capable of being cured, the Employee shall have
failed to cure such breach within thirty (30) days after his receipt of such
notice.
1.3 Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(a) (i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the 1934 Act) of twenty percent (20%) or more of the combined voting power
of the Company's then outstanding Voting Securities; provided, however, that in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as defined below) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (1) an employee benefit plan (or a
trust forming a part thereof) maintained by (x) the Company or (y) any
corporation or other Person of which a majority of its voting power or its
equity securities or equity interest is owned directly or indirectly by the
Company (a "Subsidiary"), or (2) the Company or any Subsidiary.
(ii)Notwithstanding the foregoing, a Change in Control shall
not be deemed to occur solely because a Person (the "Subject Person") gained
Beneficial Ownership of more than the permitted amount of the outstanding Voting
Securities as a result of the acquisition of Voting Securities by the Company
which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
(b) The individuals who, as of the date this Agreement is approved by
the Board, are members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least two-thirds of the Board; provided, however, that
if the election, or nomination for election by the Company's stockholders, of
any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
and defined as a member of the Incumbent Board; and provided, further, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
1934 Act) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest"), including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or reorganization involving the
Company, unless
(i) the stockholders of the Company,
immediately before such merger, consolidation or
reorganization, own, directly or indirectly immediately
following such merger, consolidation or reorganization, at
least eighty-five percent (85%) of the combined voting power
of the outstanding voting securities of the corporation
resulting from such merger or consolidation or reorganization
(the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least two-thirds of the members
of the board of directors of the Surviving Corporation, and
(iii) no Person (other than the Company, any
Subsidiary, any employee benefit plan (or any trust forming a
part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary) has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities, a transaction described in clauses (i) through
(iii) shall herein be referred to as a "Non-Control
Transaction"; or
(2) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company, or of a significant subsidiary,
to any Person, other than a transfer to a Subsidiary, in one transaction or a
series of related transactions. For purposes of this subparagraph 1.3 (c) (2),
"significant subsidiary " shall mean any subsidiary or business division of the
Company which accounts for more than 40% of the Company's income, revenue or
gross profits.
(3) The stockholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company.
(d) Notwithstanding anything contained in this Agreement to the
contrary, if the Employee's employment is terminated prior to a Change in
Control and the Employee reasonably demonstrates that such termination (i) was
at the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control (a "Third Party") or (ii)
otherwise occurred in connection with, or in anticipation of, a Change in
Control, then for all purposes of this Agreement, the date of a Change in
Control with respect to the Employee shall mean the date immediately prior to
the date of such termination of the Employee's employment.
1.4 Continuation Benefits. Continuation Benefits shall be the
continuation of the Benefits, as defined in Section 5.1, for the period from the
Termination Date to the greater of (i) of three months from the Termination Date
or (ii) the Expiration Date (the "Continuation Period") at the Company's expense
on behalf of the Employee and his dependents. The Company's obligation hereunder
with respect to the foregoing benefits shall be limited to the extent that if
the Employee obtains any such benefits pursuant to a subsequent employer's
benefit plans, the Company may reduce the coverage of any benefits it is
required to provide the Employee hereunder as long as the aggregate coverages
and benefits of the combined benefit plans is no less favorable to the Employee
than the coverages and benefits required to be provided hereunder. This
definition of Continuation Benefits shall not be interpreted so as to limit any
benefits to which the Employee, his dependents or beneficiaries may be entitled
under any of the Company's employee benefit plans, programs or practices
following the Employee's termination of employment, including, without
limitation, retiree medical and life insurance benefits.
1.5 Disability. Disability shall mean a physical or mental infirmity
which impairs the Employee's ability to substantially perform his duties with
the Company for a period of ninety (90) consecutive days.
1.6 Notice of Termination. Notice of Termination shall mean a written
notice from the Company, or the Employee, of termination of the Employee's
employment which indicates the provision in this Agreement relied upon, if any.
A Notice of Termination served by the Company shall specify the effective date
of termination.
1.7 Termination Date. Termination Date shall mean (i) in the case of
the Employee's death, his date of death; and (ii) in all other cases, the date
specified in the Notice of Termination.
ARTICLE II
EMPLOYMENT
2.1 Subject to and upon the terms and conditions of this Agreement, the
Company hereby employs and agrees to continue the employment of the Employee,
and the Employee hereby accepts such continued employment in his capacity as
President and Chief Operating Officer and his new position as Chief Executive
Officer. In this capacity, Employee will report to the Chairman of the Board and
the Board of Directors.
ARTICLE III
DUTIES
3.1 The Employee shall, during the term of his employment with the
Company, and subject to the direction and control of the Chairman of the Board
of Directors, perform such duties and functions as he may be called upon to
perform by the Chairman of the Board of Directors during the term of this
Agreement, consistent with his position as Chief Executive Officer, President
and Chief Operating Officer.
3.2 The Employee agrees to use his best efforts in the promotion and
advancement of the Company and its welfare and business. Employee agrees to
devote his primary professional time to the business of the Company as Employee
deems reasonably necessary; provided, however, that the Company acknowledges
that Employee shall be entitled to pursue unrelated personal business ventures
that do not materially conflict with the performance of Employee's duties to the
Company.
3. 3 Employee shall be based in the Red Bank, New Jersey area, and
shall undertake such occasional travel, within or without the United States as
is or may be reasonably necessary in the interests of the Company.
3.4 Licenses and Registrations. During the term of this Agreement,
Employee shall maintain in good standing all required licenses and registrations
required for the proper performance of his duties and functions.
ARTICLE IV
COMPENSATION
4.1 During the term of this Agreement, Employee shall be compensated
initially at the rate of $275,000 per annum, and increasing 10% per annum on the
1st day of each January during the period this Agreement provided that the
Company shall have achieved net profits of at least $500,000 during the previous
fiscal year (the "Base Salary"). The Base Salary shall be paid to the Employee
in accordance with the Company's regular executive payroll periods.
4.2 Employee shall be entitled to receive a bonus (the "Bonus") during
each year of this Agreement, determined as follows: The amount to be paid as a
Bonus shall be determined as of each December 31 by the Compensation Committee
of the Board of Directors based upon the prior fiscal year end and shall consist
of a portion of an "Executive Bonus Pool." The Executive Bonus Pool shall be
equal to fifteen (15%) percent of the net pre-tax profit of the Company as
determined by the Company's independent auditors, no later than 90 days
following the end of the Company's fiscal year, excluding any expense deduction
attributed to such Executive Bonus Pool (the "Net Pre-Tax Profit"); provided
that, in the event the Net Pre-Tax Profit of the Company for any fiscal year is
less than $500,000, no Executive Bonus Pool shall be established or Bonus paid
by the Company to the Employee pursuant to this subparagraph 4.2. Such
determination, for purposes of this Section 4.2 only, shall be made in
accordance with generally accepted accounting principles, as modified by these
resolutions.
4.3 Employee shall also be entitled to receive brokerage commissions on
in accordance with the commission schedule in effect for other non-affiliate
brokers employed by the Company.
4.4 Employee shall be eligible to purchase from the Company, at
Employees sole discretion, a portion of the securities contributed to the
"Corporate Finance Bonus Pool" upon the same price, terms and conditions
afforded to First Montauk Securities Corp. The Corporate Finance Bonus Pool
shall consist of up to 20% of all underwriter's warrants, placement agent
warrants and/or other securities granted to First Montauk Securities Corp., in
connection with its service as an underwriter, placement agent or investment
banker; provided however, such amount shall not exceed 50% of the total
securities retained by First Montauk Securities Corp after any allocations to
the registered representatives and the corporate finance staff in accordance
with the corporate policies in effect from time to time. The amount Employee
shall be entitled to purchase shall be determined by the Compensation Committee
of the Board of Directors on a transaction-by-transaction basis.
4.5 The Company shall deduct from Employee's compensation all federal,
state and local taxes which it may now or may hereafter be required to deduct.
4.6 Employee may receive such other additional compensation as may be
determined from time to time by the Board of Directors including bonuses and
other long-term compensation plans. Nothing herein shall be deemed or construed
to require the Board to award any bonus or additional compensation.
ARTICLE V
BENEFITS
5.1 During the term hereof, the Company shall provide Employee with the
following benefits (the "Benefits"): (i) group health care and insurance
benefits as generally made available to the Company's senior management; (ii)
such other insurance benefits obtained by the Company and made generally
available to the Company's senior management; (iii) the Company shall provide
the Employee with an automobile suitable for his position, equipped with a
mobile telephone, or at Employee's option, an appropriate automobile allowance,
and reimburse reasonable automobile expenses including insurance, repairs,
maintenance, gasoline charges, mobile phone, etc. via receipted expense reports;
(iv) reimbursement, upon presentation of appropriate vouchers, for all
reasonable business expenses incurred by Employee on behalf of the Company upon
presentation of suitable documentation all fees for licenses and registrations
and (v) payment of country club dues for one golf country club full family
membership at Colonia Country Club or comparable club.
5.2 In the event the Company wishes to obtain Key Man life insurance on
the life of Employee, Employee agrees to cooperate with the Company in
completing any applications necessary to obtain such insurance and promptly
submit to such physical examinations and furnish such information as any
proposed insurance carrier may request.
5.3 For the term of this Agreement, Employee shall be entitled to paid
vacation at the rate of four (4) weeks per annum.
5.4 Employee shall have continued use of a corporate credit card to be
used for all reasonable business expenses incurred by Employee on behalf of the
Company upon presentation of suitable documentation.
ARTICLE VI
NON-DISCLOSURE
6.1 The Employee shall not, at any time during or after the termination
of his employment hereunder, except when acting on behalf of and with the
authorization of the Company, make use of or disclose to any person,
corporation, or other entity, for any purpose whatsoever, any trade secret or
other confidential information concerning the Company's business, finances,
marketing, brokerage accounts, corporate finance transactions and clients,
products and services, accounting, insurance business and personnel of the
Company and its subsidiaries, including information relating to any customer of
the Company, or any other nonpublic business information of the Company and/or
its subsidiaries learned as a consequence of Employee's employment with the
Company (collectively referred to as the "Proprietary Information"). For the
purposes of this Agreement, trade secrets and confidential information shall
mean information disclosed to the Employee or known by him as a consequence of
his employment by the Company, whether or not pursuant to this Agreement, and
not generally known in the industry. The Employee acknowledges that trade
secrets and other items of confidential information, as they may exist from time
to time, are valuable and unique assets of the Company, and that disclosure of
any such information would cause substantial injury to the Company. Trade
secrets and confidential information shall cease to be trade secrets or
confidential information, as applicable, at such time as such information
becomes public other than through disclosure, directly or indirectly, by
Employee in violation of this Agreement. Notwithstanding the foregoing,
information concerning a customer introduced to the Company by Employee, and
known to Employee other than as a consequence of his employment by the Company,
shall not be deemed Propriety Information within the contemplation of this
Section 6.1.
6.2 If Employee is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any Proprietary
Information, Employee shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
ARTICLE VII
RESTRICTIVE COVENANT
7.1 In the event of the voluntary termination of employment with the
Company prior to the expiration of the term hereof, or Employee's discharge in
accordance with Article IX, or the expiration of the term hereof without
renewal, Employee agrees that he will not, during the term hereof and for a
period of one (1) year following termination of employment for any reason,
directly or indirectly, solicit brokers, or employees of the Company, or any
sister or subsidiary of the Company for employment with any other entity, or
(ii) solicit or accept (a) any corporate finance client relating to a
transaction, pending or proposed, involving a public offering, private
placement, or merger and acquisition advisory services, (b) research project
which was under consideration or pending at the time of Employee's termination,
or (c) any brokerage client of the Company, other than brokerage clients
introduced to the Company by Employee, and known to Employee other than as a
consequence of his employment by the Company.
7.2 If any court shall hold that the duration of non-competition or any
other restriction contained in this Article VII is unenforceable, it is our
intention that same shall not thereby be terminated but shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable or, in the alternative, such judicially substituted term may be
substituted therefor.
ARTICLE VIII
TERM
8.1 This Agreement shall be for a term (the "Initial Term") commencing
on February 1, 2005 (the "Commencement Date") and terminating on December 31,
2007 (the "Expiration Date"), and renewable as provided for herein, for one
additional period of one year unless either party hereto provides written notice
of its intention not to renew this Agreement at least 120 days prior to the
Expiration Date.
ARTICLE IX
TERMINATION
9.1 The Company may terminate this Agreement by giving a Notice of
Termination to the Employee in accordance with this Agreement:
a. For Disability; b. For Cause. c. Without Cause.
9.2 Employee may terminate this Agreement by giving a Notice of
Termination to the Company in accordance with this Agreement, at any time, with
or without good reason.
9.3 If the Employee's employment with the Company shall be terminated,
the Company shall pay and/or provide to the Employee the following compensation
and benefits in lieu of any other compensation or benefits arising under this
Agreement or otherwise:
a. if the Employee was terminated by the Company for Cause, or
the Employee terminates, the Accrued Compensation.
b. if the Employee was terminated by the Company for
Disability, the Accrued Compensation, the Continuation Benefits and Base Salary,
for the greater of (i) three months or (ii) the balance of the Term of this
Agreement; or
c. if termination was due to the Employee's death, the Accrued
Compensation; and Employee's pro rata bonus for the fiscal year in which the
date of death occurred; or
d. if the Employee was terminated by the Company without
cause, (i) the Accrued Compensation; (ii) the Employee's Base Salary for the
greater of (i) three months or (ii) the balance of the Term of this Agreement;
(iii) the Continuation Benefits for the greater of (i) three months or (ii) the
balance of the Term of this Agreement; and (iv) the Pro Rata Bonus; and further,
all conditions to the vesting of outstanding Incentive Stock Awards and Employee
Stock Options granted to the Employee under Articles XI and XII shall be deemed
void and all such awards shall be immediately and fully vested and exercisable.
9.4 The amounts payable under this Section 9, shall be paid as
follows:
a. Accrued Compensation shall be paid within five (5) business
days after the Employee's Termination Date (or earlier, if required by
applicable law).
b. If the Continuation Benefits are paid in cash, the payments
shall be made on the first day of each month during the Continuation Period (or
earlier, if required by applicable law).
c. The Base Salary through the Expiration Date shall be paid
in accordance with the Company's regular pay periods (or earlier, if required by
applicable law).
9.5 Notwithstanding the foregoing, in the event Employee is a member of
the Board of Directors on the Termination Date, the payment of any and all
compensation due hereunder, except Accrued Compensation, and Employee's right to
exercise any Employee Stock Option after the Termination Date, is expressly
conditioned on Employee's resignation from the Board of Directors within five
(5) business days of the Termination Date.
9.6 The Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Employee in any subsequent employment except as
provided in Sections 1.4.
ARTICLE X
TERMINATION OF PRIOR AGREEMENTS
10.1 This Agreement sets forth the entire agreement between the parties
and supersedes all prior agreements, letters and understandings between the
parties, whether oral or written prior to the effective date of this Agreement.
Employee expressly acknowledges that the Employment Agreement between Employee
and the Company dated as of January 31, 2004 shall be of no further force or
effect except as expressly stated herein.
ARTICLE XI
RESTRICTED STOCK GRANTS
11.1 As an inducement to Employee to enter into this Agreement, and as
a bonus award for the Company's performance during the fiscal year ended
December 31, 2004, the Company hereby grants to Employee 1,000,000 restricted
shares of the Company's Common Stock, $.001 par value subject to the provisions
of the Company's 1996 Senior Management Incentive Plan (the "Plan").
11.2 Subject to the terms and conditions of the Company's 1996 Senior
Management Incentive Plan (the "Plan"), the Employee is hereby granted 1,000,000
restricted shares of the Company's Common Stock, $.001 par value (the "Shares").
One-third of such Shares shall vest one upon the date hereof, one-third on
December 31, 2005 and the final one third on December 31, 2006. If Employee
renders continuous service to the Company from the date hereof to a vesting
date, on each such vesting date the Company shall deliver to Employee such
number of shares of Common Stock as shall vest on such date.
11.3 In the event of a Change of Control, as defined in Section 1.3,
the conditions to the vesting of any outstanding Restricted Stock Awards granted
to the Employee under this Article XI shall be deemed void and all such Shares
shall be immediately and fully vested and delivered to the Employee.
ARTICLE XII
STOCK OPTIONS
12.1 Employee has previously received, pursuant to the terms of the
Employment Agreement dated as of January 1, 2004, stock options to purchase
500,000 shares of the Company's Common Stock, of which 250,000 options shall be
exercisable at $.50 per share and 250,000 options shall be exercisable at $.75
per share. The previously granted options shall remain in full force and effect;
provided however, Employee has agreed, simultaneously with the execution of this
Agreement as further consideration for the grant of stock provided in Article XI
above, to the termination for cancellation the 250,000 options within exercise
price of $.75 per share. No further options are being granted to Employee under
this Agreement. Employee shall be eligible to receive such further options as
may be granted by the Board of Directors during the term hereof.
ARTICLE XIII
ARBITRATION AND INDEMNIFICATION; FEES AND EXPENSES
13.1 Any dispute arising out of the interpretation, application, and/or
performance of this Agreement with the sole exception of any claim, breach, or
violation arising under Articles VI or VII hereof shall be settled through final
and binding arbitration before a panel of arbitrators in accordance with the
rules of the National Association of Securities Dealers (the "NASD"). Any
judgment upon any arbitration award may be entered in any court, federal or
state, having competent jurisdiction of the parties before a single arbitrator
in the State of New Jersey in accordance with the Rules of the American
Arbitration Association. The NASD shall select the arbitrators. Any judgment
upon any arbitration award may be entered in any court, federal or state, having
competent jurisdiction of the parties.
13.2 The Company hereby agrees to indemnify, defend, and hold harmless
the Employee for any and all claims arising from or related to his employment by
the Company at any time asserted, at any place asserted, to the fullest extent
permitted by law, except for claims based on Employee's fraud, deceit or
willfulness. The Company shall maintain such insurance as is necessary and
reasonable to protect the Employee from any and all claims arising from or in
connection with his employment by the Company during the term of Employee's
employment with the Company and for a period of six (6) years after the date of
termination of employment for any reason, including errors and omissions
insurance, broker-dealer blanket bond and directors and officers liability
insurance. The provisions of this Section 12.2 are in addition to and not in
lieu of any indemnification, defense or other benefit to which Employee may be
entitled by statute, regulation, common law or otherwise.
13.3 The Company shall pay all reasonable legal fees and related
expenses (including the costs of arbitrators, experts, evidence and counsel)
incurred by, the Employee as they become due as a result of (a) the Employee's
termination of employment (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination of employment) in
violation of this Agreement, or (b) the Employee seeking to obtain or enforce
any right or benefit provided by this Agreement.
ARTICLE XIV
SEVERABILITY
14.1 If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall remain in full force and effect in all other
circumstances.
ARTICLE XV
NOTICE
15.1 For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses as set forth below or to any such other address as the party to
receive the notice shall advise by due notice given in accordance with this
paragraph. All notices and communications shall be deemed to have been received
on the date of delivery thereof or on the third business day after the mailing
thereof, except that notice of change of address shall be effective only upon
receipt.
15.2 The current addresses of the parties are as follows:
IF TO THE COMPANY: First Montauk Financial Corp.
Parkway 109 Office Center
328 Newman Springs Road
Red Bank, New Jersey 07701
Att: General Counsel
With a copy to:
Victor J. DiGioia, Esq.
Goldstein & DiGioia, LLP
45 Broadway
New York, NY 10006
IF TO THE EMPLOYEE: Victor Kurylak
26 Meadow Lane
Lebanon, New Jersey 08833
ARTICLE XVI
WAIVER
16.1 The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
ARTICLE XVII
GOVERNING LAW
17.1 This Agreement has been negotiated and executed in the State of
New Jersey which shall govern its construction and validity.
ARTICLE XVIII
JURISDICTION
18.1 Any or all actions or proceedings which may be brought by the
Company or Employee under this Agreement shall be brought in courts having a
situs within the State of New Jersey, and Employee and the Company each hereby
consent to the jurisdiction of any local, state, or federal court located within
the State of New Jersey.
ARTICLE XIX
ENTIRE AGREEMENT
19.1 This Agreement contains the entire agreement between the parties
hereto. No change, addition, or amendment shall be made hereto, except by
written agreement signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and affixed
their hands and seals the day and year first above written.
FIRST MONTAUK FINANCIAL CORP.
By: /s/ Robert I. Rabinowitz
------------------------------------
Name: Robert I. Rabinowitz
Title: Executive Vice President,
General Counsel
/s/ Victor K. Kurylak
------------------------------------
Victor K. Kurylak
Employee