XXXXX AND COMPANY CASH AND MARGIN AGREEMENT
In consideration of Xxxxx & Company Securities Corporation ("XXXXX") accepting
one or more accounts of the undersigned (whether designated by name, number or
otherwise) and XXXXX'x agreeing to act as broker for the undersigned in the
purchase or sale of securities, the undersigned agrees as follows:
1. All transactions are subject to the rules, regulations, customs and usages
of the exchange or markets (and the clearing agency, if any) where executed
and of any association whose rules and regulations govern transactions in
that market and your account agreement(s) with XXXXX. We will furnish, upon
written request, the date and time when a transaction took place and the
name of the other party to the transaction.
2. Whenever any statute shall be enacted which shall affect in any manner or be
inconsistent with any of the provisions hereof, or whenever any rule or
regulation shall be prescribed or promulgated by The New York Stock Exchange,
The Securities and Exchange Commission and/or The Board of Governors of The
Federal Reserve System which shall affect in any manner or be inconsistent
with any of the provisions hereof, the provisions of this agreement so
affected shall be deemed modified or superseded, shall in all respects,
continue and be in full force and effect. Except as herein otherwise
expressly provided, no provision of this agreement shall in any respect be
waived, altered, modified or amended unless such waiver, alteration,
modification or amendment be committed to writing and signed by an officer
of XXXXX.
3. All monies, securities or other property which XXXXX may at any time be
carrying for the undersigned or for any account in which the undersigned has
an interest or which may at any time be in XXXXX'x possession for any
purpose, including safekeeping, shall be subject to a general lien for the
discharge of all obligations of the undersigned to XXXXX, irrespective of
whether or not XXXXX has made advances in connection with such securities or
other property and irrespective of the number of accounts the undersigned
may have with XXXXX.
4. All securities or any other property, now or hereafter held by XXXXX or
carried by XXXXX for the undersigned (either individually or jointly with
others), or deposited to secure the same, may from time to time and without
notice to the undersigned, be carried in Xxxxx'x general loans and may be
pledged, repledged, hypothecated, or rehypothecated separately or in common
with other securities or any other property, for the sum due to XXXXX
thereon and without retaining in XXXXX'x possession and control for delivery
a like amount of similar securities.
5. XXXXX is hereby authorized, in its discretion, should the undersigned die or
should XXXXX for any reason whatsoever deem it necessary for XXXXX'x
protection, to sell any or all of the securities or other property which may
be in XXXXX'x possession or which XXXXX may be carrying for the undersigned
(either individually or jointly with others) or to buy in any securities or
other property of which the account or accounts of the undersigned may be
short or cancel any outstanding orders in order to close out the account or
accounts of the undersigned in whole or in part or in order to close out any
commitment made in behalf of the undersigned. Such sale, purchase or
cancellation may be made according to XXXXX'x judgment and may be made, at
XXXXX'x discretion, on the exchange or other market whether such business
is then usually transacted or at public auction or at private sale, without
advertising the same and without notice to the undersigned or to the personal
representative of the undersigned and without prior tender, demand, or call
of any kind upon the undersigned or upon the personal representatives of the
undersigned and XXXXX may purchase the whole or any part thereof free from
any right of redemption, and the undersigned shall remain liable for any
deficiency; it being understood that a prior joinder, demand or call of any
kind from XXXXX, or prior notice from XXXXX, of the time and place of such
sale or purchase shall not be considered a waiver of XXXXX'x right to sell
or buy any securities and/or property held by XXXXX, or owed XXXXX by the
undersigned, at any time as hereinbefore provided.
6. Notwithstanding a general policy of giving customers notice of a margin
deficiency, XXXXX is not obligated to request additional margin from the
undersigned in the event an account in which the undersigned has an interest
falls below the minimum maintenance requirements. More importantly, there
may well be circumstances where XXXXX will liquidate securities and/or other
property in the account without notice to the undersigned to ensure that
minimum maintenance requirements are satisfied. The undersigned will at
all times maintain margins for said accounts, as required by XXXXX. At any
time and from time to time, in XXXXX'x discretion, XXXXX may without notice
to the undersigned apply and/or transfer any or all monies, securities and/
or other property of the undersigned interchangeable between any accounts of
the undersigned.
7. The undersigned undertakes, at any time upon XXXXX'x demand, to discharge
obligations of the undersigned to XXXXX, or, in the event of a closing of any
account of the undersigned in whole or in part, to pay XXXXX the deficiency,
if any, and no oral agreement or instructions to the contrary shall be
recognized or enforceable. The reasonable costs and expenses of collection
of the debit balance and any unpaid deficiency in the accounts of the
undersigned with XXXXX, including, but not limited to, attorney's fees
incurred and payable or paid by XXXXX shall be payable to XXXXX by the
undersigned.
8. In case of the sale of any security or other property by XXXXX at the
direction of the undersigned and XXXXX'x inability to deliver the same to the
purchaser by reason of failure of the undersigned to supply XXXXX therewith,
then and in such event, the undersigned authorizes XXXXX to borrow any
security or other property necessary to make delivery thereof, and the
undersigned thereby agrees to be responsible for any loss which XXXXX may
sustain thereby and any premiums which XXXXX may be required to pay thereon,
and for any loss which XXXXX may sustain by reason of XXXXX'x inability to
borrow the security or other property sold.
9. It is understood and agreed that the undersigned, when placing with
XXXXX any sell order for a short account, will designate it as such and
hereby authorizes XXXXX to xxxx such order as being "short" and when placing
with XXXXX any order of a long account, will designate it as such and hereby
authorizes XXXXX to xxxx such order as being "long". Any sell order which
the undersigned shall designate as being for a long account as above provided
is for securities then owned by the undersigned and, if such securities are
not then deliverable by XXXXX from any account of the undersigned, the
placing of such order shall constitute a representation by the undersigned
that it is impracticable for him then to deliver such securities to XXXXX
but that he will deliver them as soon as it is possible for him to do so
without undue inconvenience or expense.
10. The undersigned is solely responsible for all securities transactions in
this account and represents that the undersigned can afford to take the risks
inherent in trading securities and is an experienced, informed investor. The
undersigned agrees that if there is any material change in the investment
objectives or financial situation of the undersigned or if the undersigned
can no longer afford to take the risks inherent in trading securities, XXXXX
will be notified before any further transactions are entered into. The
undersigned is aware of the fact that XXXXX tape records conversations
between the undersigned and XXXXX and authorizes that tape recording. It
is understood and agreed that XXXXX will act only as agent for the under-
signed, and that XXXXX will not offer or provide any opinions, judgment or
information concerning the nature, value or potential suitability of any
trade or investment.
11. In deciding where to route orders, absent specific instructions from
customers, XXXXX will take into consideration, among other factors, the quality
and speed of execution, as well as the credits and/or cash payments receivable
from the New York Stock Exchange and other market centers. Where specific
instructions are given, XXXXX may require that a higher commission be applied to
some or all future transactions in the account.
12. Communications by mail, messenger, telegraph or otherwise, sent to the
undersigned at the address of record listed on the application, or any other
address the undersigned may give XXXXX in writing, are presumed to be
delivered to and received by the undersigned whether actually received or
not. Information contained on transaction reports and account statements is
conclusive unless the undersigned objects in writing within ten (10)
calendar days after they are sent or transmitted to the undersigned.
13. This agreement and its enforcement shall be governed by the laws of
Massachusetts and its provisions shall be continuous, shall cover
individually and collectively all accounts which the undersigned may open
or reopen with XXXXX, and shall inure to the benefit of XXXXX'x present
organization and any successor organization, irrespective of any change or
changes at any time in the personnel thereof, for any cause, whatsoever and
of the assigns of XXXXX'x present organization or any successor organization
and shall be binding upon the undersigned and/or the estate, executors,
administrators and assigns of the undersigned.
14. The undersigned, if any individual, represents that the undersigned is of
full age, that the undersigned is not an employee of any exchange or of any
corporation of which any exchange owns a majority of the capital stock or of a
member of any exchange or of a member firm or member corporation registered on
any exchange or of a bank, trust company, insurance company or of any
corporation, firm or individual engaged in the business of dealing either as
broker or as principal, in securities, bills of exchange, acceptances or
other forms of commercial paper or that if the undersigned is so employed,
XXXXX has the consent of the undersigned's employer to open the account or
accounts of the undersigned with XXXXX. The undersigned further represents
that no one except the undersigned has an interest in the account or
accounts of the undersigned with XXXXX.
INITIAL DISCLOSURE OF CREDIT TERMS UNDER SEC RULE 10b-16
15. The undersigned will be charged interest on any credit extended to or
maintained for the undersigned by XXXXX for the purpose of purchasing,
carrying or trading in any security. The annual rate of interest which will
be charged on net debit balances will usually be no more than the highest
rate for brokers' call money published in The Wall Street Journal and The
New York Times. The rate of interest will be changed without notice in
accordance with changes in the brokers' call money rate. With the exception
of a credit balance in the short account, all other credit balances in al
cash and margin accounts are combined and interest is charged to the margin
account on any resulting debit balance, interest is computed monthly on the
debit balances during the month. If, during the month, there is a change in
interest rates, separate charges will be shown for each interest period under
the different rate, but interest will be compounded monthly. The combining
of balances, as well as the actual interest calculations are done by
computer, but interest is arrived by multiplying the net debit balance by
the effective rate of interest by the number of days divided by 360. In
the event there is a decline in the market value of the securities in the
margin account, XXXXX may have to request additional collateral. Generally,
such a request for additional collateral will be made by XXXXX when the
equity in the account falls below 30%. However, XXXXX retains the right to
require additional margin at any time XXXXX deems it necessary or advisable.
Any such call for additional collateral may be met by delivery of additional
marginable securities or cash. Any securities in any of the accounts of the
undersigned are collateral for any debit balances in the account with XXXXX.
A lien is created by these debits to secure the amount of money owed XXXXX.
This means that, in accordance with the terms of this agreement, securities
in the said accounts can be sold to redeem or to liquidate any debit
balances in these accounts.
16. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED AUTHORIZES XXXXX TO LEND TO
XXXXX OR TO OTHERS ANY SECURITIES NOW OR HEREAFTER CARRIED ON MARGIN BY
XXXXX FOR THE ACCOUNT OF THE UNDERSIGNED BUT ONLY TO THE EXTENT THAT THERE
IS A MARGIN OBLIGATION.
17. The undersigned understands that XXXXX will release the undersigned's
name, address and securities positions to requesting companies in which the
undersigned holds securities, unless the undersigned checks this box.
[ ] Check this box if the undersigned is associated with a member of The New
York Stock Exchange or the NASD, other than as a customer. If so, what is
the firm's name?
[ ] Check this box if the undersigned is a director, 10% stockholder or
policy making officer of a publicly traded company. If so, specify the
company or companies.
18. Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding because: (a) I am exempt
from backup withholding, or (b) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of
a failure to report all interest or dividends, or (c) the IRS has notified
me that I am no longer subject to backup withholding.
Certification Instructions. You must cross out Item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return. For real estate transactions, item (2) does not apply. For
mortgage interest paid the acquisition or abandonment of secured property,
contributions to an individual retirement arrangement (XXX), and generally
payments other than interest and dividends, you are not required to sign
the Certification, but you must provide your correct TIN.
Social Security or Tax ID No. Applicant Signature
_____________________________ __________________________________
Date Co-Applicant Signature (if applicable)
_____________________________ ___________________________________
MBEN:\X-X\GAGNER\XXXXXX.XX
