Exhibit 10.10
BRANCH OFFICE MANAGEMENT AGREEMENT
Agreement made as of the ___ day of , 199 , between All-Tech
Investment Group, Inc. (the "Company"), with offices at 160 Summit Avenue,
Montvale, New Jersey 07645 and (the "Manager"), residing at
.
The Company is registered as a securities broker/dealer with
the Securities and Exchange Commission (the "SEC") and is a member of the
National Association of Securities Dealers, Inc. (the "NASD"). The Company is
engaged in the retail securities business and desires to expand such business.
The Manager is desirous of opening and managing a retail securities branch
office for the Company in or around .
In consideration of the foregoing and the promises contained
herein, the parties hereto agree as follows:
1. Position. The Company hereby appoints and the Manager
hereby agrees to be appointed as the branch office manager of a branch office of
the Company to be established in or around (the "Branch Office").
2. Term. This Agreement is for a term of three years from the
date hereof (the "Term") and shall be automatically renewed for two additional
three year Terms unless terminated earlier as provided in this Agreement.
3. Duties. The Manager shall perform all of the duties
typically performed by a branch office manager of a retail securities firm
including, but not limited to: (i) the hiring, supervising and firing of all
office personnel, including registered personnel; (ii) office compliance with
applicable rules (as such term is defined in Paragraph 11(c) hereof) as well as
compliance with Company policies and procedures; and (iii) the maintaining of
all books and records required to be maintained by a branch office under the
rules and regulations from time to time in effect which are promulgated by the
SEC, the NASD or other self regulatory organization with jurisdiction over the
Company and any other federal, state or local authority with jurisdiction over
the Branch Office.
4. Office of Supervisory Jurisdiction; Staffing.
(a) The Manager understands that the Company,
pursuant to Section 3010(a)(3) of the NASD Conduct Rules, may designate the
Branch Office as an office of supervisory jurisdiction, in which case the
Manager agrees to become licensed as a general securities principal prior to and
during the maintenance of such designation. The Manager agrees that s/he shall
be directly responsible, in the first
1
instance, for the review of the activities of registered representatives and
persons associated with the Company in the Branch Office.
(b) The Branch Office shall employ a receptionist and
such other employees as it deems necessary and advisable.
(c) The Manager understands and acknowledges that no
person may be paid any commission income who is not appropriately registered
with the Company's self regulatory organization (currently the NASD) and is not
employed by the Company.
5. Limitations on Management Authority. The following
limitations are hereby imposed on the Manager's authority with respect to the
Branch Office:
(a) The Manager is not authorized to commit the
Company's funds or to bind the Company to any contract without receiving the
prior written approval of the Chief Financial Officer of the Company, which is
currently Mark Shefts. The Manager shall instruct all third party providers of
goods or services to the Branch Office to submit authorized invoices which are
payable by the Company directly to the Company's Chief Financial Officer at the
Company's Main Office (the "Main Office") for payment. In the event any
authorized invoice is submitted to the Branch Office by any third party provider
in which the Company is the named payor, the Manager shall immediately forward
such invoice to the Main Office;
(b) The Manager is not authorized to recommend, or
permit any person or persons under his/her supervision to recommend, any
prolonged or continued volume accumulation of securities without receiving the
prior written approval of Harvey Houtkin, the Chief Executive Officer of the
Company, or the Company's Chief Compliance Officer;
(c) The Company's Chief Compliance Officer must give
his or her prior written approval for the hiring of all personnel;
(d) The Company's Chief Compliance Officer must give
his or her written approval for all advertising or marketing materials prior to
their distribution or use;
(e) The Manager may advertise only in the local area
of the Branch Office;
(f) The Manager may not conduct an options business
unless a registered options principal is working at the Branch Office. In all
other cases options business must be conducted through the Company's principal
office through its registered options principal.
2
(g) The Manager may not conduct any training in
electronic trading by Customers, as hereinafter defined, at the Branch Office or
elsewhere, other than on-floor assistance to customers who have been trained in
connection with the training program operated by All-Tech Training Group, Inc.
("ATG") or be associated in any way with any such training program operated by
any third party except the training program operated by ATG. The Manager shall
notify the Company at any time s/he wishes ATG to conduct any such training.
6. Purchase and Sale Orders.
(a) All orders taken by personnel in the Branch
Office must be transmitted to the Company's Montvale, New Jersey office for
execution. Any exception to this policy must be approved in advance by the
President or Chief Compliance Officer of the Company. No purchase or sale
transaction may be accepted unless sufficient funds or equity to consummate the
transaction are in the account for which the order is being taken.
(b) The commission charged to effect a transaction on
behalf of a customer shall equal the Company's standard commission charges for
transactions of that type. Such standard charges are currently between $20.00
and $31.25 plus any additional fees charged in the customers' commission (or
absorbed by the Branch Office) for transactions effected on Nasdaq, an exchange
or any proprietary execution system.
(c) The foregoing subparagraph 6(b) notwithstanding:
(i) the Main Office shall set commission
charges for the Remote Customers (as hereinafter defined) of the Branch Office,
which commission is currently $25.00 per transaction; and
(ii) the commission for "general retail"
business transactions effected by the Company for a customer of the Branch
Office shall equal the sum of (A) $25.00, (B) applicable self regulatory
organization ("SRO"), Nasdaq, exchange and/or fees charged by an electronic
communications network ("ECN"), and (C) such additional amount as is within
Company parameters as the Company designates in writing from time to time to the
Manager.
7. Financial Responsibilities for Branch Office. The Manager
agrees to bear complete financial responsibility for the opening and operation
of the Branch Office ("Branch Expenses"), such responsibility to include, but
not be limited to, the following:
(a) All expenses of opening and operating the Branch
Office, including rent, telephones, cost of lines and equipment to connect the
Branch Office to the Company's Main Office, cost of stock quotation service for
the Branch Office,
3
utilities, equipment, supplies, furniture and fixtures, advertising, insurance
and any other expenses incurred in connection with such opening and operation.
All computer and data transmission equipment for the use of the Branch Office,
in accordance with the Company's specifications, and all upgrades and
modifications thereof required by the Company, shall be purchased from the
Company, at the expense of the Branch Office, including the cost of shipping the
same;
(b) All costs of Company personnel directly assigned
to handle the order flow generated by the Branch Office, and all personnel
employed at the Branch Office, which costs include, but are not limited to,
salaries, taxes, (including, but not limited to, payroll taxes), bonuses,
benefits, (including, but not limited to, health insurance) and registration and
CRD charges for such personnel;
(c) All costs or expenses of compliance, litigation,
arbitration and regulatory investigations related to the Branch Office,
including, but not limited to, attorneys' fees and expenses, fines and
judgments;
(d) All debit balances in customers' accounts and the
costs associated with collecting those debit balances;
(e) All other costs incurred in connection with the
Company's clearing agreement which are attributable to the Branch Office;
(f) A charge for processing and cancelling trades
(the "Ticket Fee"), equal to fifty percent (50%) of the commission charged to
the customer (the "Base Ticket Fee"), but no lower than $12.50, plus the
following:
(i) For Nasdaq trades, all applicable Nasdaq
and/or ECN fees charged in the customer's commission or absorbed by the Branch
Office.
(ii) For listed trades, fee per share (as
from time to time disclosed in writing to the Manager plus all applicable
Nasdaq, exchange, floor execution, and/or ECN fees and charges charged in the
customer's commission or absorbed by the Branch Office.
(iii) For options, the Company's applicable
fee per option contract (as from time to time disclosed in writing to the
Manager).
The foregoing notwithstanding, for general retail business, the Ticket Fee shall
equal the sum of (A) $12.50, (B) applicable SRO, Nasdaq, exchange, floor
execution, and/or ECN fees and charges, and (C) 25% of the portion of the
commission charged for a transaction which exceeds the sum of (A) and (B).
(g) The cost of Nasdaq and other third party provider
equipment and services utilized by the Company for the Branch Office. The
obligation of the
4
Manager for the cost of such third party equipment and services shall survive
the termination of this Agreement and terminate at the earliest date when
termination of the contract therefor is permitted by such third party provider.
To the extent the foregoing expenses are start-up or
one time expenses, such as equipment, CRD charges, Nasdaq and communication line
installation charges and deposits and the like, the Manager shall forward
payment therefor upon receipt of written advice from the Company as to the
charges in respect thereof. To the extent the foregoing expenses are of an
ongoing nature, such as payroll, taxes, stock quotation services and the like,
the Company shall pay all of the foregoing costs and expenses and such amounts
shall be deducted from Monthly Gross Revenue in the calculation of the Manager's
Compensation, all as set forth and defined in Paragraph 8 below.
In addition to the foregoing, the Branch Office shall
maintain an error account fund equal to $10,000.00. Such fund shall be
established by the Company withholding $1.00 on each transaction effected for an
account of the Branch Office until such amount is attained (or reattained,
should the error account be utilized for an error arising from a transaction
effected for an account of the Branch Office). Such error account fund shall be
non-interest bearing. Upon termination of this Agreement, the Company may offset
against amounts in the error account any amounts owing to the Company by the
Branch Office hereunder. Upon the termination of this Agreement and payment of
all amounts owing to the Company hereunder, including, but not limited to,
amounts owing pursuant to subparagraph 7(g) hereof, any amount retained in such
error account after a final accounting for the Branch Office shall be remitted
to the Manager.
In addition to the foregoing, the Manager shall,
simultaneous with the Manager's execution of this Agreement, pay to the Company
the non-refundable sum of $110,000.00.
This Section 7(g) shall survive the termination of
this Agreement; and
(h) A charge of $.25 per ticket for the cost of
national advertising, marketing and public relations.
8. Compensation to Manager.
(a) The Manager shall receive from the Company all of
the "Monthly Gross Revenue", as hereinafter defined, generated by the Branch
Office less the Branch Expenses (the "Manager's Compensation"). The Manager
shall be paid on or before the 15th day of the month for the Monthly Gross
Revenues generated in the immediately preceding month.
5
(b) The term "Monthly Gross Revenues" as used herein
shall mean all commission revenue generated during a month through the efforts
of the Branch Office personnel and received by the Company prior to the 20th day
of the immediately succeeding month.
9. Remote Customers.
(a) "Remote Customers" of the Company are all those
customers of the Company who trade via the Company's Attain(R) system from a
location other than a branch office.
(b) A Remote Customer shall be designated as a Remote
Customer of the Branch Office if such customer has been referred to the Company
in writing by the Manager and such customer's trades (i) are routed through a
remote area server of the Branch Office, or (ii) communicated to the Company via
Internet. When a Remote Customer is so designated as a Remote Customer of the
Branch Office, the Manager shall be entitled to the compensation with respect to
such Remote Customer set forth in Paragraph 8 above. Remote Customers designated
as Remote Customers of the Branch Office shall be considered as customers of the
Branch Office for all purposes hereunder as fully as if such customers were
physically present at the Branch Office and the Manager shall be responsible for
all costs of doing business with such Remote Customers, including, without
limitation, the costs described in Paragraphs 7 and 10 hereof; provided,
however, the Branch Office shall not bear the cost of the Remote Customers'
computer and related equipment, which shall be the sole responsibility of the
Remote Customers.
(c) If a Remote Customer of the Branch wishes to
change branches (because of lower communication costs or some other reason), the
Manager may elect to keep such Remote Customer as a Remote Customer of the
Branch Office by installing for such Remote Customer an incoming 800 number into
the Remote Area Server ("RAS") of the Branch Office or by negotiating with the
branch office to which the customer wishes to move for the "lease" of a line of
such other branch office's RAS for that Remote Customer. The Company recommends
that the charge for such inter-branch "lease" be $100.00 per line.
(d) The Manager understands and agrees that the
Company has Remote Customers who are not designated as customers of the Branch
Office. The Manager agrees that such non-Branch Office Remote Customers shall be
entitled to utilize the Branch Office's RAS and the Company shall reimburse the
Branch Office for the actual cost of such usage.
10. Customer Complaints. The Manager shall promptly inform the
Company at its Main Office by telephone (and confirm in writing sent by
telephone facsimile to the President or Chief Compliance Officer of the Company)
of any customer complaints, whether written or oral, as set forth in the Branch
Procedures
6
section of the Company's Compliance Manual. If such complaints are in writing,
copies of the complaint shall be provided to the Company by telephone facsimile
simultaneous with the Manager's transmission of notification of the complaint.
The Manager shall have the responsibility to resolve all customer complaints
arising out of the Branch Office and the financial responsibility to bear the
entire cost thereof. The Company reserves the right, in its sole discretion, to
settle any complaint and charge the Manager with all of the costs of any such
settlement, including attorneys' fees and disbursements, if any.
11. Representations of Manager. The Manager represents,
warrants and covenants to the Company as follows:
(a) That on or before the Branch Office opens for
business the Manager will be 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/her ability to act as a registered representative;
(b) That, if the Company designates the Branch Office
as an office of supervisory jurisdiction, the Manager will be licensed as a
general securities principal with the NASD and will not be subject to a
suspension of that license or limitation on his/her ability to act as a
principal prior to and during the maintenance of such designation;
(c) That the Manager is fully familiar with all
applicable rules, regulations, and statutes of all state and federal agencies
which regulate securities markets as well as the constitution, rules, by-laws,
regulations and customs of all applicable securities markets, associations,
exchanges and clearing houses (hereinafter collectively referred to as the
"Applicable Rules") and will fully comply therewith;
(d) That the Manager has read and understands the
Company's policies and Compliance Manual and will fully comply therewith;
(e) That the Manager, and each of them, attends and
completes all-Tech's four-week branch manager training course. The Branch
Manager shall be responsible for his/her own transportation and living costs
during the pendency of the course;
(f) That the Manager will devote all of his/her
working time, and his/her best efforts and attention to the active, on-site,
day-to-day management of the Branch Office; and
(g) That the Manager is not a party to any agreement
preventing the execution by him/her of this Agreement or the fulfillment by the
Manager of his/her obligations hereunder.
7
12. Representations of the Company. The Company represents and
warrants to the Manager as follows:
(a) That it is a member in good standing of NASD;
(b) That it is duly registered as a broker/dealer
with the SEC and the States of and New Jersey;
(c) That it is authorized to execute and deliver this
Agreement and to perform its obligations hereunder.
13. Indemnification. The Manager hereby agrees to indemnify,
defend and hold the Company harmless from any loss, damage, claim, cost and
expense, including, but not limited to, reasonable attorneys' fees and
disbursements, arising out of his management of the Branch Office or his breach
of this Agreement. This Paragraph 13 shall survive the termination of this
Agreement.
14. Non-Competition Covenants.
(a) The Manager acknowledges that the Company's
Customers, as hereinafter defined, are a valuable, special and unique asset of
the Company's business. For the purposes of this paragraph, the term "Customer"
refers to individuals, entities, and individuals acting on behalf of entities
(i) who are Customers at the time of the Manager's termination ("Termination"),
(ii) who were Customers of the Company within a year prior to Termination, (iii)
who were being solicited as Customers of the Company within a year prior to
Termination, and also refers to any accounts owned or controlled, directly or
indirectly, by a Customer.
(b) During the Term of this Agreement and for a
period of one year thereafter the Manager agrees that s/he shall not:
(i) Solicit or accept business on behalf of
any entity or person who is in Competition with the Company, as hereinafter
defined, from any person who is, or was, at any time during the preceding 12
months, a Customer of the Company;
(ii) Induce or attempt to induce any
Customer to limit such Customer's business with Company, by direct advertising
or solicitation;
(iii) Disclose the names of any Customers to
any other person or persons, whether natural persons or business entities; or
(iv) Solicit any of the employees of the
Company engaged in the Business, as hereinafter defined, including any
individual who was an employee of
8
the Company within one (1) year of the Manager's Termination, to leave the
employ of the Company or to change the site of his/her employment within the
Company.
(c) During the Term of this Agreement, and for a
period of one year after its Termination, the Manager agrees that s/he will not
engage or become interested, directly or indirectly, as owner, employee,
officer, director, partner, through stock ownership (except ownership of less
than two percent (2%) of the number of shares outstanding of any securities
which are listed for trading on any securities exchange or are regularly traded
by members of the NASD in the over-the-counter market), or by the investing of
capital, lending of money or property, rendering of services, or otherwise,
either alone or in association with others, in the operation of any type of
business or enterprise within 75 mile radius of the Branch Office, or within 25
miles of any other branch office of the Company, in any way in Competition, as
hereinafter defined, with the Business conducted by the Company prior to the
termination of the Agreement, otherwise than on behalf of the Company or any
Affiliate thereof. "Affiliate", as the term is utilized in this Agreement shall
mean any Company which has more than 50% of its equity owned by the Company or
by persons who are beneficial owners of stock in the Company, or is controlled,
by contract or otherwise, by the Company or its beneficial stockholders,
controls or is under common control with the Company.
(d) The Company agrees that if the Company (i)
terminates this Agreement other than for "Cause," as hereinafter defined, or
(ii) fails to renew this Agreement without Cause, the Manager will not be bound
by the covenants not to compete set forth in Paragraphs 14(a)-(c) above.
(e) The Manager and the Company agree that the
foregoing covenant not to compete is a reasonable covenant under the
circumstances, and further agree that if in the opinion of any court of
competent jurisdiction, such restraint is not reasonable in any respect, such
court shall have the right, power and authority to excise or modify such
provision or provisions of this covenant as to the court shall appear not
reasonable and to enforce the remainder of the covenant as so amended.
"Competition," as such term is utilized in this Agreement,
shall mean (a) engaging in the retail brokerage business with very active
customers engaging in short-term or intra-day trading primarily utilizing the
NASD's Small Order Execution System, or any successor thereto or any other
electronic system for the delivery and execution of orders in the
over-the-counter market, on an exchange or on an alternative trading system
and/or (b) engaging in training persons to trade on-line or electronically
(collectively, the "Business"), but shall not mean engaging in a general retail
brokerage business in a retail brokerage firm.
"Cause," as such term is utilized in this Agreement, shall
mean termination of this Agreement by the Company because of (i) the commission
by
9
Manager of Gross Misconduct, as defined in Paragraph 17(f) hereof, or (ii) the
termination of this Agreement pursuant to Paragraph 17(g) or (h) hereof.
(f) The Company agrees that it shall not open a
branch which competes with the Branch Office. For the purposes of this Section
14(f), the determination of whether a branch office of the company competes with
the Branch Office shall be in the sole discretion of the Company, without
reference to the definition of "Competition" set forth above.
(g) This Paragraph 14 shall survive the termination
of this Agreement.
15. Confidential Information.
(a) Unless compelled by an order of a governmental
agency with authority over the subject matter or a court of competent
jurisdiction, either during or after the Term of this Agreement, the Manager
will not communicate, disclose or utilize for his/her own benefit or the benefit
of any other entity or person any of the terms and conditions of this Agreement,
or the techniques, plans, designs, programs, customer information or other
information of the Company not in the public domain or, if in the public domain,
if revealed or disclosed in contravention of this Agreement or the agreements
made between the Company and other parties ("Confidential Information"). In the
event that the Manager is required to disclose Confidential Information to the
extent necessary to comply with the valid order of such an agency or court, the
Manager shall notify the Company prior to making any such disclosure and shall
promptly seek confidential treatment of such Confidential Information.
(b) Upon termination of this Agreement pursuant to
Section 17, the Manager agrees to promptly surrender to the Company all property
purchased by the Company or produced on its behalf including all equipment and
all originals and copies on any memoranda, customer lists, business manuals,
programs and any other documents and material received by Manager while this
Agreement is in effect and in the Manager's possession, custody or control. The
Manager shall not retain or deliver to any other entity or person any of the
foregoing or any summary thereof or memorandum pertaining thereto.
16. Lease; Sublet or Assignment. It shall be the
responsibility of the Manager to enter into a lease of premises for the
operation of the Branch Office in his/her own name or in the name of an entity
controlled by the Manager. The Manager agrees to obtain the consent of the
landlord in any lease for office space entered into by the Branch Office to a
sublet or assignment of the lease to the Company. Such consent shall include an
acknowledgment by the landlord that the premises may be utilized to operate a
branch office of the Company, and in such event the Company's name shall be
listed in the building directory and otherwise as is customary in such building
but that in no event is the Company liable with respect to the lease unless a
10
written sublet or assignment is entered into with the landlord. The Manager
agrees to sublet the premises in which the Branch Office is located to the
Company on a month to month basis. The Manager agrees that upon termination of
this Agreement, the Company shall have the option, but not the obligation, to
enter into an assignment or sublet of the lease with the Manager, and the
Manager agrees to execute and deliver all such other documents and instruments
as may be necessary or desirable to effectuate any such sublet or assignment,
such obligation to survive the termination of this Agreement. The Manager agrees
to furnish and decorate the space in a manner appropriate to the brokerage
business and reasonably acceptable to the Company. The Manager further agrees
that upon any termination of this Agreement for any reason, the Company shall
have the right, but not the obligation, to purchase the furnishings and
equipment utilized in the operation of the branch office at the then fair market
value as determined by an independent appraiser selected by the Company in its
reasonable discretion, such amount to be payable within 30 days after such
termination.
17. Termination. This Agreement shall be terminated
immediately upon the happening of the earliest of the following events:
(a) If the Manager fails to lease space for the
Branch Office within thirty (30) days of his/her execution of the Agreement or
fails to open the Branch Office for business within sixty (60) days of his/her
execution of this Agreement unless such failure is attributable to a failure of
the Company's self regulatory organization to grant the necessary approvals
(excluding any failure based on the Manager's not being licensed as a registered
representative or a general securities principal or approved to be the Manager
of the Branch Office);
(b) If the Manager is not qualified as a general
securities principal on or before the end of the forty-fifth day after the
Company notifies the Manager that such qualification is required hereunder;
(c) Whenever the Company and Manager shall mutually
agree to termination in writing;
(d) Except as otherwise provided in Section 17(i)
hereof, on the death of Manager;
(e) Except as otherwise provided in Section 17(i)
hereof, if the Manager incurs a disability through physical or mental incapacity
which renders the Manager incapable of performing his/her duties under this
Agreement for a period of two (2) consecutive months or an aggregate of two (2)
months during any four (4) month period. If any dispute arises as to the
existence of a disability under this subparagraph 17(e), the same shall be
resolved by the opinion of two licensed physicians, one selected by the Company
and the other selected by the Manager. If the two physicians so selected cannot
agree as to whether or not Manager is disabled,
11
as defined herein, the two physicians so selected shall designate a third
physician and a majority of the three physicians so selected shall conclusively
determine whether the Manager is disabled.
(f) If Manager engages in "Gross Misconduct." For the
purposes of this Agreement, the term "Gross Misconduct" shall mean (i) any gross
default, gross misfeasance, fraud or embezzlement; (ii) any substantial breach
or non-observance of any of the covenants set forth herein; provided, any breach
of Paragraph 14(a) hereof shall be deemed a substantial breach of this
Agreement; further provided that in the event the Company gives the Manager
written notice of a breach of a provision of this Agreement which notice
contains a warning that a subsequent breach of the same provision will be deemed
a substantial breach giving the Company the right to terminate this Agreement,
any subsequent breach shall be deemed substantial and the Company may at any
time thereafter terminate this Agreement; and further provided that
notwithstanding the foregoing, the Company shall not be required to give any
written or oral notice prior to exercising its right to terminate this Agreement
for a substantial breach thereof; (iii) the immoderate use of alcohol on a
habitual basis; (iv) the illegal use of a controlled substance on the premises
of the Company or any of its Affiliates, or while engaged in any business
related function which adversely affects the Manager's ability to perform
services hereunder; (v) the commission of any act of sexual or racial
harassment, the violation of any federal or state securities law or any rule or
regulation of the Securities and Exchange Commission, the NASD, any state
securities commission or any other governmental agency or authority, or any
other act having the potential to expose the Company or any of its Affiliates to
civil or criminal penalties or the Manager's conviction of a felony; (vi)
absence from the business and affairs of the Company for any unreasonable period
of time, without leave; or (vii) the willful disobedience or neglect of any of
the Company's supervisory procedures, other internal policies or procedures or
reasonable orders directions of the management or officers of the Company;
(g) If the Branch Office fails to effect at least
2,000 transactions per month for any three month period during the Term other
than any three month period which includes any of the first six months of the
Term; or
(h) If the Branch Office violates Paragraph 5(g)
hereof relating to electronic day trading training or fails to utilize its best
efforts to have each of its customers attend the day trading training course
offered by ATG, or any successor thereto, unless the Company has previously
given the Manager a written waiver as to any particular customer in advance of
the Company's effecting any transactions for the account of such customer.
(i) Sections 17(d) and (e) notwithstanding, upon the
death or disability of the Manager, this Agreement may be assigned by the
Manager, his or her executor or personal representative to a person who is
licensed by the applicable state and self regulatory organization to the extent
necessary to serve as manager of the
12
Branch Office, who is approved by the applicable self regulatory organization(s)
to do so, who is identified to the Company within sixty (60) days of the
Manager's death or disability and who is acceptable to the Company in its sole
and absolute discretion.
18. Other Obligations. The Manager agrees to utilize his/her
best efforts to ensure that each customer of the Branch Office, prior to opening
an account, attends ATG's day trading training program, unless All-Tech gives
the Manager a written waiver of this requirement as to a particular customer in
advance of the Company's effecting any transactions for the account of such
customer.
19. Assignment. Except as otherwise provided in Section 17(i)
hereof, the Manager may not assign this Agreement or any of his or her rights or
duties hereunder, and any such purported assignment or assumption shall be null,
void and of no effect. The foregoing notwithstanding, a Manager, if there be
more than one Manager who is a party to this Agreement, may assign all or a
portion of his or her rights and obligations to his or her co-Manager provided
that the NASD does not object thereto. The Company may assign this Agreement to
any registered broker/dealer, upon written notice to the Manager.
20. Entire Agreement; Modification. This instrument contains
the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written understandings. This Agreement
may not be modified or amended except in a writing executed by the parties
hereto. The Manager shall not unreasonably withhold his/her consent to such
modifications to this Agreement as the Company reasonably believes are required
from time to time by law, regulation or rule of any governmental agency, self
regulatory authority or third party vendor, or any requirement imposed by the
Company's clearing firm.
21. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given when delivered personally, when
sent by telephone facsimile, receipt confirmed, or when mailed by registered or
certified mail, return receipt requested, to the parties at their respective
addresses given above or at such other address for a party as shall be specified
by notice given pursuant hereto.
22. Enforcement. Both parties recognize that the services to
be rendered under this Agreement by the Manager are special, unique and of
extraordinary character which gives them a peculiar value. In the event of the
breach by the Manager of the terms and conditions of this Agreement to be
performed by the Manager, then the Company shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction, either in law or
in equity, to obtain damages for any breach of this Agreement, or to enforce the
specific performance thereof by Manager or to enjoin the Manager from violating
Paragraphs 14 and 15. Manager acknowledges that the Company will be irreparably
damaged if he shall breach any of the terms of Paragraphs 14 or 15 and that the
Company cannot be reasonably or adequately compensated in damages for any such
breach. The Manager agrees that
13
an injunction may be issued restraining any such breach by him/her, and that no
bond or security shall be required in connection therewith. Manager further
acknowledges that the Company's rights under this paragraph shall be enforceable
in a court of equity by decree of specific performance. Such remedy, however,
shall not be exclusive and shall be in addition to any other remedy that the
Company may have. This Paragraph 22 shall survive the termination of this
Agreement.
23. Applicable Law; Compliance. This Agreement and matters or
issues collateral thereto shall be governed by and construed in accordance with
the laws of the State of New Jersey applicable to agreements made and to be
performed solely within such State. If any provision of this Agreement is found
by a proper court to be in conflict with federal, state or local law, regulation
or ordinance, or unreasonable in any respect, then such provision shall be
considered amended to that considered lawful or reasonable by the court and, as
amended, shall be enforced; all remaining terms and conditions shall continue in
full force and effect.
24. Waiver. No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any preceding or
succeeding breach thereof or of any other agreement or provision herein
contained. No extension of time for performance of any obligations or acts shall
be deemed an extension of time for performance of any other obligations or acts.
25. Arbitration. All controversies which may arise hereunder
concerning the construction, performance or breach of this Agreement shall be
determined by arbitration. Any arbitration under this Agreement shall be
conducted in New York, New York, pursuant to the Federal Arbitration Act before
NASD Regulation, Inc. in accordance with the rules then prevailing. The award of
the arbitrators, or of the majority of them, shall be final, and judgment upon
the award rendered may be entered in any court, state or federal, having
jurisdiction.
26. Schedule A. Schedule A is annexed hereto and made a part
hereof, and the provisions thereof supersede any provisions hereinbefore set
forth.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ALL-TECH INVESTMENT GROUP, INC.
By: _____________________________
Mark Shefts, President
14
RIDER AND SCHEDULE A TO BRANCH OFFICE MANAGEMENT AGREEMENT
This Rider and Schedule A to the Branch Office Management
Agreement (the "Agreement") by and between All-Tech Investment Group, Inc. (the
"Company") and and (collectively, the "Manager") is annexed thereto and made a
part thereof. All terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement. To the extent the provisions hereof
are contrary to or vary the terms of the Agreement, the terms hereof shall
supersede the terms of the Agreement.
1. The penultimate sentence of Section 7(g) of the Agreement is stricken in its
entirety and the following sentence is substituted therefor:
2. and shall be jointly and severally liable for the obligations of the Manager
under the Agreement and this Rider and Schedule A thereto.
3. The terms and conditions of this Rider and Schedule A are confidential and
may not be disclosed by the Manager to any third party other than his legal
counsel and accountant and, upon their request to any regulatory official with
proper authorization to make such request. This Paragraph 3 shall survive the
termination of the Agreement.
ALL-TECH INVESTMENT GROUP, INC.
By _____________________________
Mark Shefts, President
15