BEAR XXXXXXX BEAR, XXXXXXX SECURITIES CORP.
XXX XXXXXXXXX XXXXXX XXXXX
XXXXXXXX, XX 00000-0000
(000) 000-0000
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth terms and conditions under which
Bear, Xxxxxxx Securities Corp., Bear, Xxxxxxx & Co. Inc. and their successors
and assigns (collectively "Bear Xxxxxxx") will transact business with you
including but not limited to the maintenance of your account(s). If these
accounts are cash accounts and you have fully paid for all securities therein,
the provisions of paragraph 16 and 17 shall not bind you unless you enter into a
margin transaction.
1. APPLICABLE LAW AND REGULATIONS. All transactions shall be subject to all
applicable law and the rules and regulations of all federal state and
self-regulatory agencies, 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 executed.
2. SECURITY INTEREST AND LIEN. As security for the payment of all of your
obligations and liabilities to Bear Xxxxxxx, Bear Xxxxxxx shall have a
continuing security interest in all property in which you have an interest held
by or through Bear Xxxxxxx or its affiliates, including, but not limited to,
securities, commodity futures contracts, commercial paper, monies and any
after-acquired property. In addition, in order to satisfy any such outstanding
liabilities or obligations, Bear Xxxxxxx may, at any time and without prior
notice to you, use, apply or transfer any such securities or property
interchangeably. In the event of a breach or default under this Agreement, Bear
Xxxxxxx shall have all rights and remedies available to a secured creditor under
any applicable law in addition to the rights and remedies provided herein.
3. DEPOSITS ON TRANSACTIONS. Whenever Bear Xxxxxxx, in its sole discretion,
considers it necessary for its protection, it may require you to deposit cash or
collateral immediately in your account(s) prior to any applicable settlement
date in order to assure due performance of your open contractual commitments.
4. BREACH, BANKRUPTCY OR DEFAULT. Any breach of this Agreement or the
filing of a petition or other proceeding in
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bankruptcy, insolvency, or for the appointment of a receiver by or against
you, the levy of an attachment against your account(s) with Bear Xxxxxxx, or
your death, mental incompetence or dissolution, or any other grounds for
insecurity, as determined by Bear Xxxxxxx in its sole discretion, shall
constitute, at Bear Xxxxxxx' election, a default by you under all agreements
Bear Xxxxxxx may then have with you, whether heretofore or hereafter entered
into. In the event of default, Bear Xxxxxxx reserves the right to sell, without
prior notice to you, any and all property in which you have an interest, held by
or through Bear Xxxxxxx or any of its affiliates, to buy any or all property
which may have been sold short, to cancel any or all outstanding transactions
and/or to purchase or sell any other securities or property to offset market
risk, and to 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, Bear Xxxxxxx may
purchase or sell the property free of any right of redemption. In addition, Bear
Xxxxxxx shall have the right to set off and apply any amount owing from Bear
Xxxxxxx or any of its affiliates to you against any indebtedness in your
accounts, whether matured or unmatured.
5. FEES AND CHARGES. You understand that Bear Xxxxxxx may charge
commissions and other fees for execution, custody or any other service furnished
to you, and you agree to pay such commissions and fees at Bear Xxxxxxx' then
prevailing rates. You understand further that such commissions and fees may be
changed from time to time, upon thirty days' prior written notice to you, and
you agree to be bound thereby.
6. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the execution of
orders and statements of your account(s) shall be conclusive if not objected to
in writing within five days in the case of reports of execution, and ten days in
the case of account statements, after such documents have been transmitted to
you by mail or otherwise.
7. 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 account(s), in accordance with the
methods described in such statement or in any amendment or revision thereto
which may be provided to you. Any debit balance which is
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not paid at the close of an interest period will be added to the opening balance
for the next interest period.
8. CLEARANCE ACCOUNTS. Bear, Xxxxxxx Securities Corp. carries your
account(s) as clearing agent for your broker. Unless Bear, Xxxxxxx Securities
Corp. receives from you prior written notice to the contrary, Bear, Xxxxxxx
Securities Corp. may accept from such other broker, without any inquiry or
investigation: (a) orders for the purchase or sale of securities and other
property in you 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.
9. COSTS OF COLLECTION. You hereby authorize Bear Xxxxxxx to charge you for
any reasonable direct or indirect costs of collection, including, but not
limited to, attorneys' fees, court costs and other expenses.
10. IMPARTIAL LOTTERY ALLOCATION. You agree that, in the event Bear Xxxxxxx
holds on your behalf bonds or preferred stocks in street name or bearer form
which are callable in part, you will participate in the impartial lottery
allocation system of the 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(s) in which Bear Xxxxxxx has actual knowledge that its officers,
directors or employees have any financial interest until all other customers are
satisfied on an impartial lottery basis.
11. 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 of its rights or privileges
hereunder. Any assignment of your rights and obligations hereunder or 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
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void. Notices or other communications, including margin calls, delivered or
mailed to the address provided by you, shall, until Bear Xxxxxxx has received
notice in writing of a different address, be deemed to have been personally
delivered to you.
12. FREE CREDIT BALANCES. You hereby direct Bear Xxxxxxx to use any free
credit balance awaiting investment or reinvestment in 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.
13. RESTRICTIONS ON ACCOUNT. You understand that Bear Xxxxxxx, in its sole
discretion, may restrict or prohibit trading of securities or other property in
your account(s).
14. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear Xxxxxxx and
your broker, in their discretion, to make and obtain reports concerning your
credit standing and business conduct. You may make a written request within a
reasonable period of time for a description of the nature and scope of the
reports made or obtained by Bear Xxxxxxx.
15. 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 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 incurred as a result of your failure to make delivery.
16. MARGIN ACCOUNTS. You hereby agree to deposit and maintain such margin
in your margin account(s) 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 account(s). Upon your failure to pay, or at any time Bear
Xxxxxxx, in its discretion, deems necessary for its
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protection, whether with or without prior demand, call or notice, Bear
Xxxxxxx shall be entitled to exercise all rights and remedies provided in
paragraphs 2 and 4 above. 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. Unless you advise Bear Xxxxxxx to the contrary, you 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 your account(s).
17. CONSENT TO LOAN OR PLEDGE OF SECURITIES. 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 Bear Xxxxxxx in your account(s),
together with all attendant rights of ownership, 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.
18. LEGALLY BINDING. You hereby agree that this Agreement and all the terms
hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal representatives, successors and assigns. You 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 instruction was not in writing as may be required by the Statute of Frauds
or any other similar law, rule or regulation.
19. AMENDMENT: ENTIRE AGREEMENT. You agree that Bear Xxxxxxx may modify the
terms of this Agreement at any time upon prior written notice. By continuing to
accept services from Bear Xxxxxxx, you will have indicated your acceptance of
any such modifications. If you do not accept such modifications, you must notify
Bear Xxxxxxx in writing; your account may then be terminated by Bear Xxxxxxx,
after which you will remain liable to Bear Xxxxxxx for all remaining liabilities
or obligations. Otherwise, this Agreement may not be waived or modified absent a
written instrument signed by an authorized representative of Bear Xxxxxxx.
Except as set forth above, this Agreement represents the entire agreement and
understanding between you and Bear Xxxxxxx concerning the subject matter hereof.
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20. NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
21. ARBITRATION.
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
o THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF
RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
o 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 OR 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 UNTIL:
(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.
YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU BEAR XXXXXXX AGREES, THAT
CONTROVERSIES ARISING BETWEEN YOU AND BEAR XXXXXXX, ITS CONTROL PERSONS,
PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE SUCCESSORS, ASSIGNS
AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR SUBSEQUENT TO THE DATE HEREOF,
SHALL BE DETERMINED BY ARBITRATION, 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. (AND ONLY BEFORE SUCH EXCHANGES OR
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ASSOCIATION). 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 REQUIRED
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. 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.
22. SEVERABILITY. If any provision herein is or should become inconsistent
with any present or future law, rule or regulation of any sovereign government
or regulatory body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule or regulation. In all other respects, this
Agreement shall continue to remain in full force and effect.
23. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION. 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 an employee of any
exchange or member thereof, the National Association of Securities Dealers, Inc.
or a member thereof, or of any corporation, firm or individual engaged in the
business of dealing, as broker or principal, in securities, options or future,
or of any bank, trust company or insurance company.
24. 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.
25. HEADINGS. The headings of the provisions hereof are for descriptive
purposes only and shall not modify or qualify any of the rights or obligations
set forth in such provisions.
26. TELEPHONE CONVERSATIONS. For the protection of both you and Bear
Xxxxxxx, and as a tool to correct
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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, Bear Xxxxxxx and any of Bear Xxxxxxx'
employees or agents.
If this is a Joint Account, both parties must sign. Persons signing on
behalf of others should indicate the titles or capacities in which they are
signing.
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 LOANED OUT TO OTHERS; AND
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 21.
THIS AGREEMENT DATED AS OF ________________________, 19__.
Xxxxxx Xxxxxxxx, Controller
-------------------------------------------- -------------------------------
(Typed or Printed Name)
X /s/ Xxxxxx Xxxxxxxx, Controller 204 Plaza Centre, 3505
-------------------------------------------- Silverside Road, Wimington, DE
(Signature) 19810
(Mailing Address)
-------------------------------------------- Account:979-01688-2-8
(Typed or Printed Name) -----------------------
X___________________________________________ Date:9/12/95
(Signature) --------------------------
Accepted By:________________________________ Date:__________________________
(Bear, Xxxxxxx
Securities Corp.)
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