EXHIBIT 2
Professional Bear Xxxxxxx
Account Agreement
The Bear Xxxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Title: Account or Family No.:
This agreement ("Agreement") sets forth the terms and conditions under
which subsidiaries of The Bear Xxxxxxx Companies Inc. will open and
maintain account(s) in your name and otherwise transact business with you.
If these accounts are cash accounts and you have fully paid for all
securities therein, the provisions of paragraphs 17 and 18 shall not bind
you unless you enter into a margin transaction.
1. Parties. You hereby agree that the parties to this Agreement
shall consist of you, each and every subsidiary of The Bear Xxxxxxx
Companies, Inc., whether now existing or hereafter created (each such
subsidiary being referred to hereinafter as a "Bear Xxxxxxx entity" and
all such entities being collectively referred to as "Bear Xxxxxxx").
2. Applicable Law and Regulations. All transactions shall be
subject to the applicable laws, rules and regulations of all federal,
state and self-regulatory authorities, including, but not limited to, the
Board of Governors of the Federal Reserve System and the constitution,
rules and customs of the exchange or market (and clearing house) where
such transactions are executed.
3. Security Interest and Lien. As security for the payment and
performance of all of your obligations and liabilities from time to time
outstanding to any Bear Xxxxxxx entity, whether under this Agreement or
otherwise, each Bear Xxxxxxx entity shall have a continuing first lien and
security interest in (i) all property in which you now have or hereafter
acquire an interest which is now or hereafter held by or through any Bear
Xxxxxxx entity, including, but not limited to, any and all accounts,
instruments, documents, contract rights, commodities and commodity futures
contracts, commercial paper and other securities, monies, deposit accounts
and general intangibles, and (ii) any and all rights, claims and causes of
action you may now or hereafter have against any Bear Xxxxxxx entity.
You hereby acknowledge and agree that all such property of yours held by
or through any Bear Xxxxxxx entity is held as collateral by such Bear
Xxxxxxx entity as agent and bailee for itself and all other Bear Xxxxxxx
entities. You represent that the above-described collateral shall at all
times be free and clear of all liens, claims and encumbrances of any
nature other than the security interest created hereby. In addition, in
order to satisfy any of your outstanding liabilities or obligations to any
Bear Xxxxxxx entity, Bear Xxxxxxx may, to the fullest extent permitted by
law, at any time in its discretion and without prior notice to you, use,
apply or transfer any and all securities or other property (including,
without limitation, fully-paid securities and cash). You hereby agree
that, except as otherwise specifically agreed in writing, Bear Xxxxxxx may
register and hold the securities and other property in your accounts in
its name or the name of its designee.
4. Deposits on Transactions. Whenever Bear Xxxxxxx, in its sole
discretion, considers it necessary in order to assure the due performance
of your open contractual commitments, it may require you, and you hereby
agree, to deposit cash or collateral immediately in your account(s) prior
to any applicable settlement date.
5. Breach, Bankruptcy or Default. Any breach of or default under
this Agreement or any other agreement you may have with any Bear Xxxxxxx
entity, whether heretofore or hereafter entered into, or the filing of a
petition or other proceeding in bankruptcy or insolvency, or the
appointment of a receiver by or against you or any guarantor, co-signer or
other party liable on or providing security for your obligations to any
Bear Xxxxxxx entity, or the levy of an attachment against your or any such
other party's accounts with any Bear Xxxxxxx entity, or your death, mental
incompetence or dissolution, or any other grounds for insecurity
(including, without limitation, any indication of your refusal or
inability to satisfy promptly any margin call or other deposit requirement
hereunder) shall constitute, at Bear Xxxxxxx' election, a default by you
under all agreements you may then have with any Bear Xxxxxxx entity,
whether heretofore or hereafter entered into. In the event of such
default, each Bear Xxxxxxx entity shall have all of the rights of a
secured party upon default under the New York Uniform Commercial Code and
other applicable laws, rules and regulations, including, without
limitation, the right, without prior notice to you: to sell any and all
property in which you have an interest held by or through any Bear Xxxxxxx
entity, to buy any or all property which may have been sold short, to
accelerate, cancel, liquidate, close out and net the settlement payments
and/or delivery obligations of any or all outstanding transactions and/or
to purchase or sell any other securities or property to offset market risk
and offset any indebtedness you may have (either individually or jointly
with others), after which you shall be liable to Bear Xxxxxxx for any
remaining deficiency, loss, costs or expenses sustained by Bear Xxxxxxx in
connection therewith. Such purchases and/or sales may be effected
publicly or privately without notice or advertisement in such manner as
Bear Xxxxxxx may in its sole discretion determine. At any such sale or
purchase, any Bear Xxxxxxx entity may purchase or sell the property free
of any right of redemption. In addition, Bear Xxxxxxx shall have the
right, at any time and from time to time, to set off and otherwise apply
any and all amounts owing by such Bear Xxxxxxx entity to you or for your
account or credit against any and all amounts now or hereafter owing by
you to any Bear Xxxxxxx entity (including, without limitation, any
indebtedness in your accounts), whether matured or unmatured, fixed,
contingent or otherwise and irrespective of whether any Bear Xxxxxxx
entity shall have made any demand therefor. Bear Xxxxxxx agrees to notify
you of any such set-off and application, provided, however, that the
failure to give such notice shall not affect the validity of any such set-
off and application.
6. Execution Fees and Service Charges. You understand that your
account(s) will be charged brokerage commissions or xxxx-ups/xxxx-xxxxx in
connection with the execution of transactions ("Execution Fees"), and may
be charged certain other fees for custody and other services furnished to
you ("Service Fees"). All such fees shall be determined by Bear Xxxxxxx
unless your account(s) is (are) introduced to Bear Xxxxxxx by another
broker, in which case all Execution Fees and certain Service Fees shall be
determined by such other broker. You further understand that Execution
Fees may be changed from time to time without prior notice to you and
Service Fees may be changed from time to time upon thirty days' prior
written notice to you, and, in each case, and you agree to be bound
thereby.
7. Transaction Reports and Account Statements. Reports of the
execution of orders and other activity in your account(s) which have been
provided or made available to you by 10:00 a.m. shall be conclusive if not
objected to by 12:00 noon (eastern time) on that day or, if such reports
are provided or made available to you after 10:00 a.m., then no later than
two hours after such reports have been provided or made available to you;
provided, however, that if you are a registered options trader, then by
the market opening on the day following trade date. Information contained
in monthly statements of account, to the extent not included in an
activity report, shall be conclusive if not objected to in writing within
fifteen days after such statements have been provided or made available to
you.
8. Debit Balances; Truth-In-Lending. You hereby acknowledge
receipt of Bear Xxxxxxx' Truth-in-Lending disclosure statement. You
understand that interest will be charged on any debit balances in your
accounts in accordance with the methods described in such statement or in
any amendment thereof or revision thereto which may be provided to you.
Any debit balance which is not paid at the close of an interest period
will be added to the opening balance for the next interest period.
9. Clearance Accounts. If any of your account(s) is carried by any
Bear Xxxxxxx entity as clearing agent for your broker, unless such Bear
Xxxxxxx entity receives from you prior written notice to the contrary, it
may accept from such other broker, without any inquiry or investigation:
(a) orders for the purchase or sale of securities and other property in
your account(s) on margin or otherwise and (b) any other instructions
concerning your account(s) or the property therein. You understand and
agree that Bear Xxxxxxx shall have no responsibility or liability to you
for any acts or omissions of such broker, its officers, employees or
agents. You agree that your broker and its employees are third-party
beneficiaries of this Agreement and that the terms and conditions hereof,
including the arbitration provision, shall be applicable to all matters
between or among any of you, your broker and its employees and Bear
Xxxxxxx and its employees.
10. Costs of Collection and Other Account-Related Costs. You hereby
authorize Bear Xxxxxxx to charge you for any reasonable direct or indirect
costs, liabilities and damages incurred by Bear Xxxxxxx (including,
without limitation, costs of collection, attorney's fees, court costs and
other expenses) in connection with (i) enforcing its rights hereunder,
(ii) any investigation, litigation or proceeding involving your account or
any property therein (including, without limitation, claims to such
property by third parties), (iii) your use of or access to any Bear
Xxxxxxx or thirty-party system or (iv) Bear Xxxxxxx' acting in reliance
upon your instructions or, if you account is introduced to Bear Xxxxxxx by
another broker, the instruction of such other broker. In each case and
whether or not demand has been made therefor, you hereby authorize Bear
Xxxxxxx to charge your account(s) of any and all such costs, including,
without limitation, costs incurred in connection with the liquidation of
an property held in your account(s).
11. Impartial Lottery Allocation. You agree that, in the event Bear
Xxxxxxx holds on your behalf securities in its name, in the name of its
designee or in bearer form which are called in part, you will participate
in the impartial lottery allocation system for such called securities in
accordance with the rules of the New York Stock Exchange, Inc. or any
other appropriate self-regulatory organization. When any such call is
favorable, no allocation will be made to any account in which, to the
knowledge of Bear Xxxxxxx, any officer, director or employee of Bear
Xxxxxxx has any financial interest until all other customers are satisfied
on an impartial lottery basis.
12. Waiver, Assignment and Notices. Neither Bear Xxxxxxx' failure
to insist at any time upon strict compliance with this Agreement or with
any of the terms hereof nor any continued course of such conduct on its
part shall constitute or be considered a waiver by Bear Xxxxxxx of any or
its rights or privileges hereunder. Any assignment of your rights and
obligations hereunder or your interest in any property held by or through
Bear Xxxxxxx without obtaining the prior written consent of an authorized
representative of Bear Xxxxxxx shall be null and void. Each Bear Xxxxxxx
entity reserves the right to assign any of its rights or obligations
hereunder to any other Bear Xxxxxxx entity without prior notice to you.
Notices or other communications (including, without limitation, margin
calls) will be delivered, faxed, sent by express delivery service or
mailed to the address provided by you, until Bear Xxxxxxx has received
notice in writing of a different address be deemed to have been personally
delivered to you. Margin calls may be also communicated orally without
subsequent written confirmation.
13. Free Credit Balances. You hereby authorize Bear Xxxxxxx to use
any free credit balance awaiting investment or reinvestment in any of your
account(s) in accordance with all applicable rules and regulations and to
pay interest thereon at such rate or rates and under such conditions as
are established from time to time by Bear Xxxxxxx for such account(s) and
for the amounts of cash so used.
14. Restrictions on Accounts. You understand that Bear Xxxxxxx in
its sole discretion, may restrict or prohibit trading of securities or
other property in your account(s) and may terminate your account(s), and
you shall nevertheless remain liable for all of your obligations to Bear
Xxxxxxx under this Agreement or otherwise.
15. Credit Information and Investigation. You authorize Bear
Xxxxxxx and, if applicable, your introducing broker, in its or their
discretion, at any time and from time to time, to make or obtain reports
concerning your credit standing and business conduct. You may make a
written request for a description of the nature and scope of the reports
made or obtained by Bear Xxxxxxx and the same will be provided to you
within a reasonable period of time.
16. Short and Long Sales. In placing any sell order for a short
account, you will designate the order as such and hereby authorize Bear
Xxxxxxx to xxxx the order as being "short." In placing any sell order for
a long account, you will designate the order as such and hereby authorize
Bear Xxxxxxx to xxxx the order as being "long." The designation of a sell
order as being for a long account shall constitute a representation that
you own the security with respect to which the order has been placed, that
such security is not restricted under Rules 144 and 145 under The
Securities Act of 1933 or any other applicable law, rule or regulation
and, as such, may be sold without restriction in the open market and that,
if Bear Xxxxxxx does not have the security in its possession at the time
you place the order, you shall deliver the security by settlement date in
good deliverable form or pay to Bear Xxxxxxx any losses or expenses it may
incur or sustain as a result of your failure to make delivery on a timely
basis.
17. Margin and Other Collateral Requirements. You hereby agree to
deposit and maintain such margin in any of your margin accounts, if any,
as Bear Xxxxxxx may in its sole discretion require, and you agree to pay
forthwith on demand any debit balance owing with respect to any of your
margin accounts. In addition, you further agree to promptly deposit and
maintain such other collateral with Bear Xxxxxxx as is required by any
other agreement or open transaction you may have with any Bear Xxxxxxx
entity. Upon your failure to make any such payment or deposit, or if at
any time Bear Xxxxxxx in its sole discretion deems it necessary for its
protection, whether with or without prior demand, call or notice, Bear
Xxxxxxx shall be entitled to exercise all rights and remedies provided in
paragraph 3, 5 and 29 hereof. No demands, calls, tenders or notices that
Bear Xxxxxxx may have made or given in the past in any one or more
instances shall invalidate your waiver of the requirement to make or give
the same in the future. You further acknowledge and agree that any
positions in your margin account(s) shall be deemed "securities contracts"
within the meaning of Sections 555 and 741(7) of the U.S. Bankruptcy Code
and any successors thereto. Unless you expressly advise Bear Xxxxxxx to
the contrary, you hereby represent that you are not an "affiliate" (as
defined in Rule 144(a)(1) under The Securities Act of 1933) of the issuer
of any security held in any of your accounts.
18. Consent to Loan or Pledge of Securities In Margin Accounts.
Within the limits of applicable law and regulations, you hereby authorize
Bear Xxxxxxx to lend either to itself or to others any securities held by
it in any of your margin accounts, to convey therewith all attendant
rights of ownership (including voting rights), and to use all such
property as collateral for its general loans. Any such property, together
with all attendant rights of ownership, may be pledged, repledged,
hypothecated or rehypothecated either separately or in common with other
such property for any amounts due to Bear Xxxxxxx thereon or for a greater
sum, and Bear Xxxxxxx shall have no obligation to retain a like amount of
similar property in its possession and control. You hereby acknowledge
that, as a result of such activities, Bear Xxxxxxx may receive and retain
certain benefits to which you will not be entitled. In certain
circumstances, such loans may limit, in whole or in part, your ability to
exercise voting and other attendant rights of ownership with respect to
the loaned or pledged securities.
19. Give-ups: Free Deliveries. In the event: (i) your orders are
not executed by Bear Xxxxxxx and you give-up Bear Xxxxxxx' name for
clearance and/or settlement, or (ii) you require Bear Xxxxxxx to make a
free delivery of cash or securities in connection with the settlement of
such orders, the following terms and conditions shall apply:
(a) You agree that you will only execute bona-fide orders and if
required for settlement, you will request a free delivery of cash or
securities only when you have reasonable grounds to believe that the
contra-party and the broker who executed your order have the
financial capability to complete any contemplated transaction;
(b) Bear Xxxxxxx reserves the right at any time to place a limit (of
either dollars or number of securities) on the size of transactions
that Bear Xxxxxxx will accept for clearance. If after you have
received notice of such limitation you execute an order in excess of
the limit established by Bear Xxxxxxx, Bear Xxxxxxx shall have the
right, exercisable in its sole discretion, to decline to accept the
transaction for clearance and settlement. In the event any claim is
asserted against Bear Xxxxxxx by the broker who executed your order
because of such action by Bear Xxxxxxx, you agree to indemnify and
hold Bear Xxxxxxx harmless from any loss, liability, damage, cost or
expense (including, but not limited to fees and expenses of legal
counsel) arising directly or indirectly therefrom; and
(c) Bear Xxxxxxx will on a best efforts basis attempt to clear such
transactions within a reasonable period and utilize the same
procedures it utilizes when clearing transactions executed by it.
Notwithstanding Paragraph #7 or any other provision herein to the
contrary, Bear Xxxxxxx shall have the right but not the obligation to
take action at any time in its sole discretion to correct errors in
such transactions. You hereby agree to release, indemnify and hold
Bear Xxxxxxx harmless from any loss, liability, damage, claim, cost
or expense (including, but not limited to fees and expenses of legal
counsel) arising out of or incurred in connection with your failure
or the failure of the broker who executed your order to settle the
transaction, to return any free delivery upon demand, or to object to
any information provided or made available to you under paragraph #7
hereof, and Bear Xxxxxxx shall have no liability whatsoever to you in
any such circumstance.
20. Prime Brokerage Services.
(a) Prior to the commencement of any prime brokerage activity, Bear
Xxxxxxx will enter into an agreement with your executing
broker(s) under which your executing broker(s) will be
authorized to accept orders from you for settlement by Bear
Xxxxxxx (the "Prime Brokerage Agreement"). Bear Xxxxxxx will
accept for clearance and settlement trades executed on your
behalf by such executing broker(s) as you may designate from
time to time. On the day following each transaction, Bear
Xxxxxxx will send you a notification of each trade placed with
your executing broker for settlement by us based upon the
information provided by you or your agent.
(b) Bear Xxxxxxx shall be responsible for settling trades executed
on your behalf by your executing broker(s) and reported to Bear
Xxxxxxx by you and your executing broker(s) provided that you
have reported to Bear Xxxxxxx on trade date, by the time
designated to you by Bear Xxxxxxx, all the details of such
trades including, but not limited to, the contract amount, the
security involved, the number of shares or the number of units
and whether the transaction was a long or short sale or a
purchase, and further provided that Bear Xxxxxxx has either
affirmed or not DK'd ("indicated that it does not know") and has
not subsequently disaffirmed such trades. In the event that
Bear Xxxxxxx determines not to settle a trade, Bear Xxxxxxx
shall not have settlement responsibility for such trade and
shall, instead, send you a cancellation notification to offset
that notification sent to you under sub-paragraph a of this
paragraph. You shall be solely responsible and liable to your
executing broker(s) for settling such trade. In addition Bear
Xxxxxxx may be required to cease providing prime brokerage
services to you in accordance with the Prime Brokerage
Agreement.
(c) In the event of (i) the filing of a petition or other proceeding
in bankruptcy, insolvency or for the appointment of a receiver
by or against your executing broker, (ii) the termination of
your executing broker's registration and the cessation of
business by it as a broker-dealer, or (iii) your executing
broker's failure inability or refusal, for any reason whatsoever
or for no reason at all, to settle a trade, if Bear Xxxxxxx
agrees to settle any trades executed on your behalf by such
executing broker, regardless whether Bear Xxxxxxx either
affirmed or did not DK and did not disaffirm such trades, you
shall be solely responsible, and liable to Bear Xxxxxxx, for any
losses arising out of or incurred in connection with Bear
Xxxxxxx' agreement to settle such trades.
(d) You shall maintain in your account with Bear Xxxxxxx such
minimum net equity in cash or securities as Bear Xxxxxxx, in its
sole discretion may require, from time to time [the "Bear
Xxxxxxx Net Equity Requirements"], which shall in no event be
less than the minimum net equity required by the SEC Letter, as
defined in sub-paragraph (g) of this paragraph (the "SEC Net
Equity Requirements"). In the event your account falls below
the SEC Net Equity Requirements, you hereby authorize Bear
Xxxxxxx to notify promptly all executing brokers with whom it
has a Prime Brokerage Agreement on your behalf of such event.
Moreover, if you fail to restore your account to compliance with
the SEC Net Equity Requirements within the time specified in the
SEC Letter, Bear Xxxxxxx shall: (i) notify all such executing
brokers that Bear Xxxxxxx is no longer acting as your prime
broker and (ii) either not affirm or DK ("indicate that it does
not know") all prime brokerage transactions on your behalf with
trade date after the business day on which such notification was
sent. In the event either: (i) your account falls below the
Bear Xxxxxxx Net Equity Requirements, (ii) Bear Xxxxxxx
determines that there would not be enough cash in your account
to settle such transactions or that a maintenance margin call
may be required as a result of settling such transactions, or
(iii) Bear Xxxxxxx determines that the continuation of prime
brokerage services to you presents an unacceptable risk to Bear
Xxxxxxx taking into consideration all the facts and
circumstances, Bear Xxxxxxx may disaffirm all your prime
brokerage transactions and/or cease to act as your prime broker.
(e) If you have instructed your executing broker(s) to send
confirmations to you in care of Bear Xxxxxxx, as your prime
broker, the confirmation sent by such executing broker is
available to you promptly from Bear Xxxxxxx, at no additional
charge.
(f) If your account is managed on a discretionary basis, you hereby
acknowledge that your prime brokerage transactions may be
aggregated with those of other accounts of your advisor,
according to your advisor's instructions, for execution by your
executing broker(s) in a single bulk trade and for settlement in
bulk by Bear Xxxxxxx. You hereby authorize Bear Xxxxxxx to
disclose your name, address and tax I.D. number to your
executing broker(s). In the event any trade is disaffirmed, as
soon as practicable thereafter, Bear Xxxxxxx shall supply your
executing broker(s) with the allocation of the bulk trade, based
upon information provided by your advisor.
(g) The prime brokerage services hereunder shall be provided in a
manner not inconsistent with the no-action letter dated January
29, 1994 issued by the Division of Market Regulation of the
Securities and Exchange Commission (the "SEC Letter"), and any
supplements or amendments thereto.
21. Legally Binding. You and Bear Xxxxxxx hereby agree that this
Agreement and all of the terms hereof shall be binding upon you and your
your estate, heirs, executors, administrators, personal representatives,
successors and assigns. You further agree that all purchases and sales
shall be for your account(s) in accordance with your oral or written
instructions. You hereby waive any and all defenses that any such oral
instruction was not in writing as may be required by any applicable law,
rule or regulation.
22. Amendment. You agree that Bear Xxxxxxx may modify the terms of
this Agreement at any time upon prior written notice to you. By
continuing to accept services from Bear Xxxxxxx thereafter, you will have
indicated your acceptance of any such modification. If you do not accept
any such modification, you must notify Bear Xxxxxxx thereof in writing and
your account may then be terminated by Bear Xxxxxxx, but you will still be
liable thereafter to Bear Xxxxxxx for all outstanding liability and
obligations. Otherwise, this Agreement may not be waived or modified
absent a written instrument signed by an authorized representative of Bear
Xxxxxxx.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND THE CONTRACTUAL AND
ALL OTHER RIGHTS AND LIABILITIES OF THE PARTIES DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPALS THEREOF.
24. ARBITRATION. YOU AGREE THAT CONTROVERSIES ARISING BETWEEN YOU
AND YOUR INTRODUCING BROKER AND/OR BEAR XXXXXXX, AND ANY OF YOUR OR THEIR
CONTROL PERSONS, PREDECESSORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS,
ASSIGNS AND EMPLOYEES, SHALL BE DETERMINED BY ARBITRATION. WITH RESPECT
TO THE RESOLUTION OF ANY SUCH CONTROVERSY, YOU FURTHER ACKNOWLEDGE THAT::
$ ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
$ EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PARTIES ARE WAIVING THEIR
RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
$ PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
$ THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAR OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
$ THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
$ NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION
AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE
CLASS ACTION, WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED
OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE
PUTATIVE CLASS ACTION UNIT: (I) THE CLASS CERTIFICATION IS DENIED;
(II) THE CLASS IS DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM
THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO
ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS
AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
$ ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD AT THE FACILITIES
AND BEFORE AN ARBITRATION PANEL APPOINTED BY THE NEW YORK STOCK
EXCHANGE, INC. THE AMERICAN STOCK EXCHANGE, INC., OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC., OR, IF THE TRANSACTION WHICH
GIVES RISE TO SUCH CONTROVERSY IS EFFECTED IN ANOTHER UNITED STATES
MARKET WHICH PROVIDES ARBITRATION FACILITIES, BEFORE SUCH OTHER
FACILITIES. YOU MAY ELECT ONE OF THE FOREGOING FORUMS FOR
ARBITRATION, BUT IF YOU FAIL TO MAKE SUCH ELECTION BY REGISTERED MAIL
OR TELEGRAM ADDRESSED TO BEAR XXXXXXX SECURITIES CORP. 000 XXXX
XXXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION: CHIEF LEGAL OFFICER (OR
ANY OTHER ADDRESS OF WHICH YOU ARE ADVISED IN WRITING), BEFORE THE
EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM BEAR
XXXXXXX TO MAKE SUCH ELECTION, THEN BEAR XXXXXXX MAY MAKE SUCH
ELECTION. FOR ANY ARBITRATION SOLELY BETWEEN YOU AND A BROKER FOR
WHICH BEAR XXXXXXX ACTS AS CLEARING AGENT, SUCH ELECTION SHALL BE
MADE BY REGISTERED MAIL TO SUCH BROKER AT ITS PRINCIPAL PLACE OF
BUSINESS. JUDGMENT UPON THE AWARD OF THE ARBITRATORS MAY BE ENTERED
IN ANY STATE OR FEDERAL COURT HAVING JURISDICTION.
25. Severability. If and to the extent any provision hereof is or
should become invalid or unenforceable under any present or future law,
rule or regulation of any sovereign government or regulatory body having
jurisdiction over the subject matter of this Agreement, then (i) the
remaining terms and provisions shall be unimpaired and remain in full
force and effect and (ii) the invalid or unenforceable provision or term
shall be replaced by a term or provision that is valid and enforceable and
that comes closest to expressing the intent of such invalid or
unenforceable term or provision.
26. Extraordinary Events. Bear Xxxxxxx shall not be liable for
losses caused directly or indirectly by government restrictions, exchange
or market rulings, suspension of trading, war, strikes or other conditions
beyond its control.
27. Headings. The headings of the provisions hereof are for ease of
reference only and shall not affect the interpretation or application of
this Agreement or in any way modify or qualify any of the rights provided
for hereunder.
28. Telephone Conversations. For the protection of both you and
Bear Xxxxxxx, and as a tool to correct misunderstandings, you hereby
authorize Bear Xxxxxxx, at Bear Xxxxxxx' discretion and without prior
notice to you, to monitor and/or record any or all telephone conversations
between you and any of Bear Xxxxxxx' employees or agents. You acknowledge
that Bear Xxxxxxx may determine not to make or keep any of such recordings
and that such determination shall not in any way affect such party's
rights.
29. Cumulative Rights; Entire Agreement. The rights of each Bear
Xxxxxxx entity set forth in this Agreement and in each other agreement you
may have with any Bear Xxxxxxx entity, whether heretofore or hereafter
entered into, are cumulative are in addition to any other rights and
remedies that any Bear Xxxxxxx entity may have and shall supersede any
limitation on or any requirement for the exercise of such rights and
remedies that is inconsistent with the terms of this or any other such
agreement (including, without limitation, any requirement that time elapse
or notice or demand be given prior to the exercise of remedies). The
provisions of this Agreement shall supersede any inconsistent provisions
of any other agreement heretofore or hereafter entered into by you and any
other Bear Xxxxxxx entity to the extent that the subject matter thereof is
dealt with in this Agreement and the provisions of any such other
agreement would deny and Bear Xxxxxxx entity any benefit or protection
afforded to it under this Agreement. You hereby appoint Bear Xxxxxxx as
your agent and attorney-in-fact to take any action (including, but not
limited to, the filing of financing statements) necessary or desirable to
perfect the security interest granted to it in paragraph 3 hereof or to
otherwise accomplish the purposes of this Agreement. Except as set forth
above, this Agreement represents the entire agreement and understanding
between you and Bear Xxxxxxx concerning the subject matter hereof.
30. Capacity to Contract; Affiliations. You represent that you are of
legal age and that, unless you have notified Bear Xxxxxxx to the contrary,
neither you nor any member of your immediate family is (i) an employee or
member of any exchange, (ii) an employee or member of the National
Association of Securities Dealers, Inc., (iii) an individual or an
employee of any corporation or firm engaged in the business of dealing as
broker or principal, in securities, options or futures or (iv) an employee
of any bank, trust company or insurance company. If the undersigned is
signing on behalf of others, the undersigned hereby represents that the
person(s) or entity(ies) on whose behalf it is signing is/are authorized
to enter into this Agreement and that the undersigned is duly authorized
to sign this Agreement and make the representations contained herein in
the name and on the behalf of such other person(s) or entity(ies). You
hereby authorize Bear Xxxxxxx to accept faxed copies of this or any other
document or instruction as if it were the original and further to accept
signatures on said faxes as if they were the original.
ALL ACCOUNTS PLEASE COMPLETE THIS INFORMATION AND SIGN ON THE FOLLOWING
PAGE AS APPROPRIATE:
THIS AGREEMENT IS DATED AS OF JULY 7, 1997
LaSalle Financial Partners, L.P.
Name of Account Owner
000 X. Xxxxxxxx Xxxxxx-Xxxxx 000
Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
City, State Zip Code+4
By signing this Agreement you acknowledge that:
1. The securities in your margin account(s) and any securities for which
you have not fully paid, together with all attendant ownership rights, may
be loaned to Bear Xxxxxxx or to others and;
2. You have received a copy of this Agreement.
This Agreement contains a pre-dispute arbitration clause at paragraph 24.
If account is owned by a partnership:
Signature of Partnership
LaSalle Capital Management, Inc.
By:
/s/ Xxxxxxx X. Xxxxxx, President, LaSalle Capital Management, Inc.
Print Name and Title:
Talman Financial, Inc.
/s/ Xxxxx X. Xxxxx, President, Talman Financial, Inc.
Accepted and Agreed to :
_____________________
for the Bear Xxxxxxx Companies, Inc. and its subsidiaries
