Exhibit 10.31
CONSULTING AGREEMENT
This agreement (this "Agreement") is made this 19th day of January,
2007 (the "Effective Date") and when executed by the parties, will constitute an
agreement between FIRST MONTAUK FINANCIAL CORP. with its principal place of
business at Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, New
Jersey 07701 (the "Company") and Robert I. Rabinowitz, with his residence at 7
Meadows Lane, Ocean, New Jersey 07712 (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 legal
and regulatory consulting services related to the broker dealer business of the
Company, and public company consulting work 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 legal or regulatory actions involving the Company 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, the Company agrees to pay Consultant a retainer fee (the
"Retainer Fee") of $100,000 during the Term (as defined in Paragraph 7 below) of
this Agreement payable as follows: $50,000 payable on February 1, 2007; and Five
(5) monthly payments of $10,000 each beginning on July 1, 2007 and continuing
through November 1, 2007. In addition to his compensation hereunder, during the
Term of this agreement the Company will provide Consultant with suitable office
space from which Consultant can provide his services, a cellular telephone and
service. The Company shall reimbursed Consultant for all reasonable expenses
incurred in the performance of his duties hereunder, 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. During the Term, Company shall pay Consultant all Retainer Fees due
on the first 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. During the term of this Agreement, the Consultant shall maintain in
good standing all of his securities and legal licenses and registrations
required for the proper performance of his duties and functions. During the term
of this Agreement, the Company shall pay the cost of maintaining such licenses
and registrations on Consultant's behalf, including but not limited to
Executive's legal licenses, and securities, investment advisory and insurance
licenses and registrations. 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 11 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/ Victor K. Kurylak
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Victor Kurylak, President & C.E.O.
CONSULTANT
By: /s/ Robert I. Rabinowitz
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Robert I. Rabinowitz