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EXHIBIT 10.2
CUSTOMER AGREEMENT
In consideration for you (the "Broker") opening or maintaining one or more
accounts (the "Account") for the undersigned (the "Customer"), the Customer
agrees to the terms and conditions contained in this Agreement. The heading of
each provision of this Agreement is for descriptive purposes only and shall not
be deemed to modify or qualify any of the rights or obligations set forth in
each such provision. For purposes of this Agreement, "securities and other
property" means, but is not limited to, money, securities, financial
instruments and commodities of every kind and nature and related contracts and
options, except that the provisions of paragraph 21 herein (the arbitration
clause) shall not apply to commodities accounts. This definition includes
securities or other property currently or hereafter held, carried or maintained
by you or by any of your affiliates, in your possession or control, or in the
possession or control of any such affiliate, for any purpose, in and for any of
my accounts now or hereafter opened, including any account in which I may have
an interest.
1. Applicable Rules and Regulations
All transactions in the Customer's Account shall be subject to the
constitution, rules, regulations, customs and usages of the exchange or
market, and its clearing house, if any, where the transactions are
executed by the Broker or its agents, including its subsidiaries and
affiliates. Also, where applicable, the transactions shall be subject (a)
to the provisions of (1) the Securities Exchange Act of 1934, as amended,
and (2) the Commodities Exchange Act, as amended; and (b) to the rules and
regulations of (1) the Securities and Exchange Commission, (2) the Board
of Governors of the Federal Reserve System and (3) the Commodities Futures
Trading Commission.
2. Agreement Contains Entire Understanding/Assignment
This Agreement contains the entire understanding between the Customer and
the Broker concerning the subject matter of this Agreement. Customer may
not assign the rights and obligations hereunder without first obtaining
the prior written consent of the Broker.
3. Severability
If any provision of this Agreement is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, that determination shall not effect the validity of the
remaining provisions of this Agreement.
4. Waiver
Except as specifically permitted in this Agreement, no provision of this
Agreement can be, nor be deemed to be, waived, altered, modified or
amended unless such is agreed to in a writing signed by the Broker.
5. Delivery of Securities
Without abrogating any of the Broker's rights under any other portion of
this Agreement and subject to any indebtedness of the Customer to the
Broker, the Customer is entitled, upon appropriate demand, to receive
physical delivery of fully paid securities in the Customer's Account.
6. Liens
All securities and other property of the Customer in any account in which
the Customer has an interest shall be subject to a lien for the discharge
of any and all indebtedness or any other obligation of the Customer to the
Broker. All securities and other property of the Customer shall be held by
the Broker as security for the payment of any such obligations or
indebtedness to the Broker in any Account that the Customer may have an
interest, and the Broker subject to applicable law may, at any time and
without prior notice to the Customer, use and/or transfer any or all
securities and other property interchangeably in any Account(s) in which
the Customer has an interest (except regulated commodity Accounts).
7. Pledge of Securities and Other Property
Within the limitations imposed by applicable laws, rules and regulations,
all securities and other property of the Customer may be pledged and
repledged and hypothecated and rehypothecated by the Broker from time to
time, without notice to the Customer, either separately or in common with
such other securities and other property of other bona fide Customers of
the Broker, for any amount due to the Broker, in the Customer's
Account(s). The Broker may do so without retaining in its possession or
under its control for delivery a like amount of similar securities or
other property.
8. Interest
Debit balances of the Account(s) of the Customer shall be charged with
interest in accordance with the Broker's established custom, as disclosed
to the Customer pursuant to the provisions of Rule 10b-16 of the
Securities Exchange Act of 1934.
9. Disclosures Regarding Liquidations and Covering Positions
THE CUSTOMER SHOULD CLEARLY UNDERSTAND THAT, NOTWITHSTANDING A GENERAL
POLICY OF GIVING CUSTOMERS NOTICE OF A MARGIN DEFICIENCY, THE BROKER IS NOT
OBLIGATED TO REQUEST ADDITIONAL MARGIN FROM THE CUSTOMER IN THE EVENT THE
CUSTOMER'S ACCOUNT FALLS BELOW MINIMUM MAINTENANCE REQUIREMENTS. MORE
IMPORTANTLY, THERE MAY/WILL BE CIRCUMSTANCES WHERE THE BROKER WILL
LIQUIDATE SECURITIES AND/OR OTHER PROPERTY IN THE ACCOUNT WITHOUT NOTICE TO
THE CUSTOMER TO ENSURE THAT MINIMUM MAINTENANCE REQUIREMENTS ARE SATISFIED.
10. Liquidations and Covering Positions
THE BROKER SHALL HAVE THE RIGHT IN ACCORDANCE WITH ITS GENERAL POLICIES
REGARDING MARGIN MAINTENANCE REQUIREMENTS TO REQUIRE ADDITIONAL COLLATERAL
OR THE LIQUIDATION OF ANY SECURITIES AND OTHER PROPERTY WHENEVER IN
BROKER'S DISCRETION IT CONSIDERS IT NECESSARY FOR ITS PROTECTION INCLUDING
IN THE EVENT OF, BUT NOT LIMITED TO: THE FAILURE OF THE CUSTOMER TO
PROMPTLY MEET ANY CALL FOR ADDITIONAL COLLATERAL; THE FILING OF A PETITION
IN BANKRUPTCY BY OR AGAINST THE CUSTOMER; THE APPOINTMENT OF A RECEIVER IS
FILED BY OR AGAINST CUSTOMER; AN ATTACHMENT IS LEVIED AGAINST ANY ACCOUNT
OF THE CUSTOMER OR IN WHICH THE CUSTOMER HAS AN INTEREST OR; THE CUSTOMER'S
DEATH. IN SUCH EVENT, THE BROKER IS AUTHORIZED TO SELL ANY AND ALL
SECURITIES AND OTHER PROPERTY IN ANY ACCOUNT OF THE CUSTOMER WHETHER
CARRIED INDIVIDUALLY OR JOINTLY WITH OTHERS, TO BUY ALL SECURITIES OR OTHER
PROPERTY WHICH MAY BE SHORT IN SUCH ACCOUNT(S), TO CANCEL ANY OPEN ORDERS
AND TO CLOSE ANY OR ALL OUTSTANDING CONTRACTS, ALL WITHOUT DEMAND FOR
MARGIN OR ADDITIONAL MARGIN, OTHER NOTICE OF SALE OR PURCHASE, OR OTHER
NOTICE OR ADVERTISEMENT EACH OF WHICH IS EXPRESSLY WAIVED BY THE CUSTOMER.
ANY SUCH SALES OR PURCHASES MAY BE MADE AT BROKER'S DISCRETION ON ANY
EXCHANGE OR OTHER MARKET WHERE SUCH BUSINESS IS USUALLY TRANSACTED OR AT
PUBLIC AUCTION OR PRIVATE SALE, AND BROKER MAY BE THE PURCHASER FOR
BROKER'S OWN ACCOUNT. IT IS UNDERSTOOD A PRIOR DEMAND, OR CALL, OR PRIOR
NOTICE OF THE TIME AND PLACE OF SUCH SALE OR PURCHASE SHALL NOT BE
CONSIDERED A WAIVER OF BROKER'S RIGHT TO SELL OR BUY WITHOUT DEMAND OR
NOTICE AS HEREIN PROVIDED.
11. Margin
The Customer agrees to maintain in all accounts with the Broker such
positions and margins as required by all applicable statutes, rules,
regulations, procedures and custom, or as the Broker deems necessary or
advisable. The Customer agrees to promptly satisfy all margin and
maintenance calls.
12. Satisfaction of Indebtedness
The Customer agrees to satisfy, upon demand, any indebtedness, and to pay
any debit balance remaining when the Customer's Account is closed, either
partially or totally. Customer Account(s) may not be closed without Broker
first receiving all securities and other property for which the Account is
short and all funds to pay in full for all securities and other property
in which the Account(s) are long.
13. Transactions and Settlements
All orders for the purchase or sale of securities and other property will
be authorized by the Customer and executed with the understanding that an
actual purchase or sale is intended and that it is the Customer's intention
and obligation in every case to deliver certificates or commodities to
cover any and all sales or to pay for any purchase upon the Broker's
demand. If the Broker makes a short sale of any securities and other
property at the Customer's direction or if the Customer fails to deliver to
the Broker any securities and other property that the Broker has sold at
the Customer's direction, the Broker is authorized to borrow the securities
and other property necessary to enable the Broker to make delivery and the
Customer agrees to be responsible for any cost or loss the Broker may
incur, or the cost of obtaining the securities and other property if the
Broker is unable to borrow it. The Broker is the Customer's agent to
complete all such transactions and is authorized to make advances and
expend monies as are required.
14. Sales By Customer
The Customer understands and agrees any order to sell "short" will be
designated as such by the Customer, and that the Broker will xxxx the order
as "short". All other sell orders will be for securities owned ("long"), at
that time, by the Customer by placing the order the Customer affirms that
he will deliver the securities on or before the settlement date.
15. Broker As Agent
The Customer understands that the Broker is acting as the Customer's
agent, unless the Broker notifies the Customer, in writing before the
settlement date for the transaction, that the Broker is acting as a dealer
for its own account or as agent for some other person.
16. Confirmations and Statements
Confirmations of transactions and statements for the Customer's Account(s)
shall be binding upon the Customer if the Customer does not object, in
writing, within ten days after receipt by the Customer. Notice or other
communications including margin and maintenance calls delivered or mailed
to the address given below shall, until the Broker has received notice in
writing of a different address, be deemed to have been personally
delivered to the Customer whether actually received or not.
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17. SUCCESSORS
Customer hereby agrees that this Agreement and all the terms thereof shall
be binding upon Customer's heirs, executors, administrators, personal
representatives and assigns. This Agreement shall enure to the benefit of
the Broker's present organization, and any successor organization,
irrespective of any change or changes at any time in the personnel thereof,
for any cause whatsoever.
18. CHOICE OF LAWS
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 LAWS OF THE STATE OF NEW YORK.
19. CAPACITY TO CONTRACT, CUSTOMER AFFILIATION
By signing below, the Customer, represents that he/she is of legal age, and
that he/she 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
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, and that the Customer will promptly notify the Broker in writing if
the Customer is now or becomes so employed. The Customer also represents
that no one except the Customer has an interest in the account or accounts
of the Customer with you.
20. ARBITRATION DISCLOSURES
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.
21. ARBITRATION
THE CUSTOMER AGREES, AND BY CARRYING AN ACCOUNT FOR THE CUSTOMER THE BROKER
AGREES THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING ANY
TRANSACTION OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY
OTHER AGREEMENT BETWEEN US PERTAINING TO SECURITIES AND OTHER PROPERTY,
WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE
DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
CONDUCTED PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE STATE
DESIGNATED IN PARAGRAPH 18, BEFORE THE AMERICAN ARBITRATION ASSOCIATION, OR
BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR AN ARBITRATION FACILITY
PROVIDED BY ANY OTHER EXCHANGE OF WHICH THE BROKER IS A MEMBER, OR THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR THE MUNICIPAL
SECURITIES RULEMAKING BOARD AND IN ACCORDANCE WITH THE RULES THEN IN EFFECT
OF THE SELECTED ORGANIZATION. THE CUSTOMER MAY ELECT IN THE FIRST INSTANCE
WHETHER ARBITRATION SHALL BE BY THE AMERICAN ARBITRATION ASSOCIATION, OR BY
AN EXCHANGE OR SELF-REGULATORY ORGANIZATION OF WHICH THE BROKER IS A
MEMBER. BUT IF THE CUSTOMER FAILS TO MAKE SUCH ELECTION, BY REGISTERED
LETTER OR TELEGRAM ADDRESSED TO THE BROKER AT THE BROKER'S MAIN OFFICE
BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM
THE BROKER TO MAKE SUCH ELECTION, THEN THE BROKER MAY MAKE SUCH ELECTION,
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. 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; OR (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.
22. DISCLOSURES TO ISSUERS
Under rule 14b-1(c) of the Securities Exchange Act of 1934, we are required
to disclose to an issuer the name, address, and securities position of our
customers who are beneficial owners of that issuer's securities unless the
customer objects. Therefore, please check one of the boxes below:
[ ] Yes, I do object to the disclosure of such information.
[ ] No, I do not object to the disclosure of such information.
23. LOAN OR PLEDGE OF SECURITIES
THE CUSTOMER HEREBY AUTHORIZES THE BROKER TO LEND EITHER TO ITSELF OR TO
OTHERS ANY SECURITIES HELD BY THE BROKER IN THE CUSTOMER'S MARGIN ACCOUNT
AND TO CARRY SUCH PROPERTY IN ITS GENERAL LOANS. SUCH PROPERTY MAY BE
PLEDGED, REPLEDGED, HYPOTHECATED OR REHYPOTHECATED EITHER SEPARATELY OR IN
COMMON WITH OTHER SUCH PROPERTY FOR ANY AMOUNTS DUE TO THE BROKER THEREON
OR FOR A GREATER SUM AND THE BROKER SHALL HAVE NO OBLIGATION TO RETAIN A
LIKE AMOUNT OF SIMILAR PROPERTY IN ITS POSSESSION AND CONTROL.
BY SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT:
1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE LOANED TO THE
BROKER OR LOANED OUT TO OTHERS AND:
2. THAT THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 21.
(X) XXXXXX X'XXXXXX 12/22/98 (X)
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Customer Signature/Date Customer Signature/Date
HULL TRADING COMPANY L.L.C.
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Customer Address Account Number
311 SOUTH XXXXXX DRIVE/SUITE 1400
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XXXXXXX, XX 00000
o If joint account, all customers must sign.
o Please indicate Preference in Paragraph 22 and fill in name of state in
Paragraph 18.
o Retain second copy for your files.
