0
XXXXXXX XX. 0
XXXXX, XXXXXX AND GUARDIAN Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
ACCOUNT AGREEMENT Xxx Xxxx, XX 00000-0000
Title of Account 212-902-1000
[LOGO]
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Title of Account Account Number
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Xxxx Xxxxxx Xxx. Trust 027-15831-0-051
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TO: XXXXXXX, SACHS & CO.
This agreement sets forth our respective rights and obligations in connection
with your accepting a cash or margin account or accounts designated in the
above-referenced manner ("Client"). The agreements and obligations of Client set
forth herein shall be deemed the agreements and obligations of the account or
accounts established hereunder and of the undersigned, acting in the capacity
indicated. This agreement is in addition to (and in no way limits or restricts)
any of the provisions of or the rights which you or any of your affiliates may
have under any other agreements between you or any of your affiliates and
Client. You and Client hereby agree to the following with respect to any of
Client's accounts with you and all transactions with you:
1. EXCHANGE OR MARKET. All transactions under this agreement shall be in
accordance with the rules and customs of the exchange or market and its clearing
house, if any, where the transactions are executed and in conformity with
applicable law and regulations of governmental authorities and future amendments
or supplements thereto.
2. GENERAL LIEN; DELIVERY OF COLLATERAL. Client agrees that all securities and
other property, and the proceeds thereof, and any other obligations, whether or
not due, which you or any of your affiliates may hold for Client or which are,
or may become, due to Client (either individually or jointly with others or in
which Client has any interest) and all rights Client may have against you or any
of your affiliates shall be subject to a general lien, security interest and
right of set-off for the discharge of all Client's obligations to you or any of
your affiliates. Client further agrees that you may, in your discretion at any
time and from time to time, require Client to deliver collateral to margin and
secure Client's performance of obligations to you and your affiliates with
respect to spot, forward, option, swap and other transactions involving or
relating to foreign exchange. Such collateral shall be delivered, within one
business day of your request, in such amount and form and to such account or
recipient as you shall specify. You may, in your discretion and without notice
to Client, deduct any amounts from Client's account and apply or transfer any of
Client's securities and other property interchangeably between any of Client's
accounts, each of which unreservedly guarantees all obligations of Client.
Client acknowledges that you and each of your affiliates act as agents for each
other in respect of the rights subject to lien as described above.
3. PAYMENT AND SETTLEMENT. Client agrees that all cash account transactions will
be handled on a cash basis and Client shall pay for any security purchased for
Client's account, and deliver any securities sold for Client's account, on or
before the settlement date. Client agrees to pay on demand all balances owing
with respect to Client's account. Client warrants that no sale of securities is
contemplated before the securities are paid for as provided above and that each
item sold will be owned by Client at the time of sale.
4. DEFAULT. In the event of default by Client of any obligation under any
transaction or agreement with you or any of your affiliates, if Client shall
become bankrupt, insolvent or subject to any bankruptcy, reorganization,
insolvency or similar proceeding, or if for any reason you or any of your
affiliates deem it advisable for your or their protection, you or any of your
affiliates may, without notice or demand to Client, and at such times and places
as you may determine, cancel, terminate, accelerate, liquidate and/or close-out
any or all transactions and agreements between Client and you or any of your
affiliates, pledge or sell any securities or other property which you or any of
your affiliates may hold for Client or which is due to Client (either
individually or jointly with others) and apply the proceeds to the discharge of
the obligation, set-off, net and recoup any obligations to Client against any
obligations to you or any of your affiliates, exercise all rights of a secured
creditor in respect of all collateral in which you or your affiliates have a
security interest or right of set-off, cover any open positions of Client (by
buying in or borrowing securities or otherwise) and take such other actions as
you or any of your affiliates deem appropriate provided that if applicable law
would stay or otherwise impair the ability of your or any of your affiliates to
take any such action upon any such bankruptcy, reorganization, insolvency or
similar proceeding, you and the applicable affiliate(s) will be deemed to have
taken such action with respect to the cancellation, termination, acceleration,
liquidation and/or close-out of transactions, and the application of appropriate
set-offs, and if and to the extent you deem it appropriate, the sale or
disposition of securities or other assets of Client, the exercise of rights of a
secured creditor, and the application of proceeds immediately prior to such
bankruptcy, reorganization, insolvency or similar proceeding. Client shall
remain liable for any deficiency and shall promptly reimburse you and your
affiliate for any loss or expense incurred thereby, including losses sustained
by reason of an inability to borrow any securities or other property sold for
Client's account.
5. INTEREST, FEES. Client agrees to pay interest charges which may be imposed by
you in accordance with your usual custom, with respect to late payments in
conjunction with any transaction, including for securities purchased, in
Client's account and prepayments in Client's account (i.e., the crediting of the
proceeds of sale prior to settlement date or prior to receipt by you of the item
sold in good deliverable form). Client acknowledges receipt of the enclosed
document entitled "Interest Charges to Clients" and agrees to be bound thereby.
Client agrees to pay promptly any amount which may become due in order to meet
requests for additional deposits or marks to market with respect to any
transactions including unissued securities purchased or sold by Client. Client
agrees to pay promptly any custody or other fees which may be imposed by you
with respect to the account.
6. SALE ORDERS. Except as provided in the last sentence of this Section 6, the
giving of each sell order by Client shall constitute a designation of the sale
as "long" and a certification that the securities to be sold are owned by Client
and, if such securities are not in your possession, the placing of such order
shall constitute a warranty by Client that Client shall deliver such securities
to you on or before settlement date. If Client maintains a margin account,
Client agrees to designate all sell orders as either "long" or "short".
7. REPORTS, STATEMENTS. Reports or confirmations of the execution of orders and
statements of Client's account shall be conclusive if not objected to in writing
within ten (10) days after forwarding by you to Client by mail or otherwise.
Communications mailed, electronically transmitted or otherwise sent to Client at
the address specified in your records shall, until three (3) business days after
you have received notice in writing of a different address, be deemed to have
been forwarded by you when sent and the Client waives all claims resulting from
failure to receive such communications.
8. CUSTODIAL ARRANGEMENTS. If you act as custodian for the securities and other
property in Client's account, you are authorized to register such securities in
your name or the name of your nominee, or cause such securities to be registered
in the name of, or in the name of the nominee of, a recognized depository or
clearing organization. Client understands that when you hold on Client's behalf
bonds or preferred stocks which are callable in part by the issuer, such
securities will be subject to your impartial lottery allocation system in which
the probability of Client's securities being selected as called is proportional
to the holdings of all clients of such securities held in bulk by or for you.
Client further understands that you will withdraw such securities from any
depository prior to the first date on which such securities may be called unless
such depository has adopted an impartial lottery system which is applicable to
all participants. Client may withdraw uncalled securities prior to a partial
call subject to compliance with applicable margin requirements and the terms of
any agreements between you and Client. You are authorized to withdraw securities
sold or otherwise disposed of, and to credit Client's account with the proceeds
thereof or make such other disposition thereof as Client may direct. You are
further authorized to collect all income and other payments which may become
due on Client's securities, to surrender for payment maturing obligations and
those called for redemption and to exchange certificates in temporary form for
like certificates in definitive form, or, if the par value of any shares is
changed, to effect the exchange for new certificates. It is understood and
agreed by Client that although you will use reasonable efforts to effect the
authorization set forth in the preceding sentence, you will incur no liability
for your failure to effect the same.
9. TERMINATION. Client and you agree that the accounts maintained hereunder may
be terminated by you or Client at any time effective upon the giving of notice
of such termination to Client or to you, as the case may be. All applicable
provisions will survive the termination of the account and this agreement.
Without limiting the foregoing, upon any such termination, the provisions of
this agreement shall remain in effect with respect to all securities and other
property then held in such account or accounts and all transactions and
agreements then outstanding between Client and you or any of your affiliates.
10. ORDERS, RECOMMENDATIONS, BUNCHING. Client acknowledges that, on occasion,
you may not be in a position to make a recommendation or render an opinion with
respect to any security. Client agrees that: i) you may, in your sole discretion
and without prior notice to Client, refuse to accept or execute any order from
Client and, in such case, you shall endeavor to give Client notice of such
refusal as soon as practical; ii) you may submit Client's orders jointly with
orders for other clients and you need not designate any of Client's eligible
orders as "Individual" when submitting orders via the DOT system and; iii) the
average price for executions resulting from bunched orders will be assigned to
Client's account.
11. GOVERNING LAW, SUCCESSOR AND ASSIGNS, WAIVER. THIS AGREEMENT AND ITS
ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND ITS
PROVISIONS SHALL COVER INDIVIDUALLY AND COLLECTIVELY ALL ACCOUNTS WHICH CLIENT
MAY MAINTAIN WITH YOU. This agreement is binding upon and inures to the benefit
of you, your affiliates, Client, and our respective legal representatives,
successors and assigns. Neither you nor Client may assign its rights or delegate
its obligations under this agreement, in whole or in part, without the prior
written consent of the other party, except for an assignment and delegation by
you of all of your rights and obligations hereunder to a successor entity that
assumes substantially all of your assets and businesses (including all of the
obligations under this agreement) by contract, operation of law or otherwise and
that is a registered broker-dealer under relevant Securities and Exchange
Commission rules. Upon any such delegation and assumption of obligations by such
successor entity, you shall be relieved of and fully discharged from all your
obligations hereunder, whether such obligations arose before or after the date
of such delegation and assumption. No waiver of any provision of this agreement
shall be deemed a waiver of any other provision, nor a continuing waiver of the
provision or provisions so waived. All waivers and modifications must be in
writing.
12. ARBITRATION.
(a) ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
(b) THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO A JURY TRIAL.
(c) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
(d) 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.
(e) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
ANY CONTROVERSY BETWEEN YOU (TOGETHER WITH ANY OF YOUR AFFILIATES ALSO INVOLVED
IN SUCH CONTROVERSY) OR ANY OF YOUR OR THEIR MANAGING DIRECTORS, OFFICERS,
DIRECTORS OR EMPLOYEES ON THE ONE HAND, AND CLIENT OR CLIENT'S AGENTS ON THE
OTHER HAND, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREBY, OR THE ACCOUNTS ESTABLISHED HEREUNDER, SHALL BE SETTLED BY
ARBITRATION, IN ACCORDANCE WITH THE RULES THEN OBTAINING OF ANY ONE OF THE
AMERICAN ARBITRATION ASSOCIATION OR THE NEW YORK STOCK EXCHANGE, INC., OR ANY
OTHER EXCHANGE OF WHICH YOU ARE A MEMBER, OR THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC. OR THE MUNICIPAL SECURITIES RULEMAKING BOARD, AS CLIENT
MAY ELECT. IF CLIENT DOES NOT MAKE SUCH ELECTION BY REGISTERED MAIL ADDRESSED TO
YOU AT YOUR MAIN OFFICE WITHIN TEN (10) DAYS AFTER RECEIPT OF NOTIFICATION FROM
YOU REQUESTING SUCH ELECTION, THEN CLIENT AUTHORIZES YOU TO MAKE SUCH ELECTION
ON BEHALF OF CLIENT. THE AWARD OF THE ARBITRATOR 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; (ii)
THE CLASS IS DECERTIFIED; OR (iii) THE CLIENT 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.
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PLEASE SEE REVERSE SIDE
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13. CLIENT REPRESENTATIONS. The undersigned represents that he or she is of
legal age. Client further represents that no one except the Client has an
interest in Client's account unless such interest is revealed in the title of
such account and in any such case, Client has the interest indicated in such
title. Client warrants that you will be kept informed of any changes in the
information supplied to you herein or otherwise in connection with your
establishing and maintaining an account or accounts for Client.
14. POWER AND AUTHORITY. In the case of multiple fiduciaries, you may accept the
instructions of any one fiduciary on behalf of all fiduciaries for any matter
relating to Client's account. Without limiting the generality of the foregoing,
each of the undersigned has full power and authority on behalf of the Client:
(a) to make purchases and sales for Client's account; (b) to withdraw funds,
securities and other property from Client's account; (c) to give and receive
instructions demands, notices, confirmations, reports, statements of account and
communications of every kind; (d) to execute this agreement and other agreements
relating to the foregoing matters and to terminate, modify, or waive any of the
provisions thereof, and (e) generally to deal with you on behalf of Client's
account, either individually or in our joint names, as fully and completely as
if each alone were interested therein, all without notice to the other or
others. Notwithstanding the foregoing, in the case of multiple fiduciaries, each
of the fiduciaries agrees that you may, in your sole discretion: (i) require
joint instruction from some or all of the fiduciaries before taking any action
hereunder and (ii) if you should receive instructions from any one or more of
the fiduciaries which are, in your opinion, in conflict with instructions
received from any other fiduciary(ies), comply with any of such instructions
and/or advise Client of the apparent conflict and/or take no action as to any
such instructions until you receive instructions from any one or more of the
fiduciaries which are satisfactory to you. The authority conferred herein shall
remain in force until written notice of the revocation, signed by Client, is
received at your New York office.
15. OWNERSHIP. Client agrees that all funds, securities and other property held
for the account and the proceeds thereof shall be held for the account in the
manner indicated in the account title, with all the legal and equitable rights
of every nature and kind, and subject to all the obligations and conditions,
that such form of ownership imposes. In the event of the death, resignation or
incompetency of any one of the fiduciaries, or other change which affects the
manner in which the property in the account is held, you shall immediately be
given written notice thereof and, in addition to the actions permitted under any
agreements relating to Client's account, you are authorized to take such action,
require such documents and tax waivers, and retain such portion of or restrict
transactions in the account, all as you may deem advisable.
MARGIN
NO MARGIN ACCOUNT WILL BE ESTABLISHED FOR THE CLIENT UNLESS AND UNTIL THE
ACCOUNT IS APPROVED FOR MARGIN TRANSACTIONS BY XXXXXXX, XXXXX & CO.
PLEASE COMPLETE SECTION 16 ONLY IF CLIENT WISHES TO APPLY FOR A MARGIN ACCOUNT.
16. MARGIN. SECTION 16 APPLIES TO TRANSACTIONS EFFECTED IN A SECURITIES MARGIN
ACCOUNT WHICH HAS BEEN ESTABLISHED BY YOU. THE PROVISIONS OF SECTION 16 ARE IN
ADDITION TO THE OTHER PROVISIONS CONTAINED IN THIS AGREEMENT.
a) Client represents and warrants to you that Client has had an opportunity to
discuss with you the risks associated with the use of margin and that the use
of margin is authorized by law and any governing documents, is suitable for the
Client, and is consistent with Client's investment objectives as supplied to
you, including, if applicable, the designation of safety of principal as
Client's primary investment objective.
b) Client agrees to maintain margins for Client's account as you may require
from time to time. Client agrees to pay interest charges which are imposed, in
accordance with your usual custom, with respect to Client's account and to pay
on demand any debit balance owing with respect to Client's account.
c) Client agrees that securities and other property in Client's account may be
carried in your general loans and may be pledged or hypothecated separately or
in common with other securities and any other property for the sum due to you
thereon or for a greater sum and without retaining in your possession and
control for delivery a like amount of similar securities or other property and
that certain rights of ownership, including the right to vote such securities,
may be transferred to you or by you to others.
BY SIGNING HERE, CLIENT INDICATES A DESIRE TO APPLY FOR A SECURITIES MARGIN
ACCOUNT, AGREES TO ABIDE BY ALL PROVISIONS IN SECTION 16, AND ACKNOWLEDGES THAT
CLIENT'S SECURITIES MAY BE LOANED TO XXXXXXX, SACHS & CO. OR TO OTHERS.
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SIGNATURE: DATE:
/s/ XXXX X. XXXXXX 8/19/98 TRUSTEE/TRUSTOR
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SIGNATURE: DATE:
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SIGNATURE: DATE:
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SIGNATURE: DATE:
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17. ASSOCIATION OF FIDUCIARIES AND BENEFICIARIES. Check all applicable boxes
and provide an explanation below if any fiduciary or beneficiary of this
account is associated with any of the entities listed below, or if an immediate
family member of any fiduciary or beneficiary (spouse, brother, sister,
parents, children, mother-in-law, father-in-law, brother-in-law, sister-in-law,
son-in-law, daughter-in-law), or other person, who supports any fiduciary or
beneficiary to a material extent, is associated with any of the following
entities:
[ ] an exchange;
[ ] a member or member organization of any exchange or the NASD or any
broker-dealer;
[ ] a bank, savings and loan institution, trust company, insurance company; or
[ ] an investment company, an investment advisory firm or other institutional
investment entity.
Explanation:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
18. FINANCIAL INFORMATION OF TRUST, ESTATE OR GUARDIANSHIP.
$250,000 $500,000
Below to to Over
$250,000 $500,000 $1,000,000 $1,000,000
-------- -------- ---------- ----------
Total Net Worth [ ] [ ] [ ] [X]
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Annual Income [ ] [ ] [ ] [X]
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Total Net Liquid Assets [ ] [ ] [ ] [X]
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PLEASE SEE NEXT PAGE
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19. INVESTMENT OBJECTIVES. While individual transactions may vary, Client's
investment objectives with respect to securities transactions are set forth
below. Such information does not apply to other transactions with you or with
any of your affiliates. PLEASE RANK ALL APPLICABLE OBJECTIVES IN ORDER OF
PREFERENCE ("1" INDICATES THE HIGHEST PREFERENCE, "5" INDICATES THE LOWEST
PREFERENCE).
1 GROWTH: Client is more interested in having the market value of the portfolio
grow over the long term than in current income from portfolio; Client is
prepared to accept additional risk to principal to achieve this growth.
3 INCOME: Client is more interested in obtaining a steady stream of current
income from the portfolio than in growth of the portfolio.
___ SAFETY OF PRINCIPAL: Client is interested primarily in preserving the value
of the account assets, and is willing to forego more growth or higher income.
2 TRADING PROFITS: Client wants to take advantage of short-term trading
opportunities, which may involve establishing and then liquidating positions
quickly.
___ SPECULATION: Client is interested in taking above-average risks to principal
in an attempt to achieve above-average returns.
The above information regarding Client's investment objectives represents
Client's current preference and supersedes any indications of such preferences
that Client may have previously provided to you with respect to securities
transactions other than information specifically supplied with respect to
options transactions.
20. ORDERS PLACED BY OTHERS. If you are authorizing someone to place orders on
your behalf, please indicate the person's name below AND COMPLETE THE ENCLOSED
TRADING AUTHORIZATION.
_______________________________________________________________________________
21. DISCLOSURE TO ISSUERS. Client understands that you may be required to
disclose to securities issuers the name, address and securities positions with
respect to securities held in the Client's account in your or your nominee's
name unless you are notified that Client objects. Client hereby notifies you
that Client wishes such disclosure to be made.
[ ] CLIENT SHOULD CHECK THIS BOX IF CLIENT DOES NOT CONSENT TO SUCH DISCLOSURE.
22. PAYMENT AGREEMENT. You are authorized to rely on the payment instructions
set forth below until written notice believed by you in good faith to be genuine
of any changes regarding such instructions is received by you. In addition, when
so instructed, you may, but you are not required to, follow payment instructions
which differ from the instructions set forth below with respect to specified
transactions, provided, however, that only Client or a person with trading
authorization over Client's account may authorize the transfer of funds to an
account which is not in the name of the trust, estate, or guardian account
established hereunder.
PAYMENT INSTRUCTIONS:
________________________________________________________________________________
Name of Bank or Other Recipient:
________________________________________________________________________________
Address:
________________________________________________________________________________
Name of Account:
________________________________________________________________________________
Account Number:
________________________________________________________________________________
Contact Name and Telephone Number (if applicable):
________________________________________________________________________________
The following persons are among those authorized to transfer funds:
________________________________________________________________________________
________________________________________________________________________________
BY SIGNING BELOW, CLIENT ACKNOWLEDGES RECEIPT OF A COPY OF THIS TRUST, ESTATE
AND GUARDIAN ACCOUNT AGREEMENT. A PREDISPUTE ARBITRATION CLAUSE IS CONTAINED
IN SECTION 12 HEREOF.
________________________________________________________________________________
SIGNATURE: DATE:
/s/ Xxxx X. Xxxxxx 8/19/98 Trustee/Trustor
________________________________________________________________________________
Please Print Name:
________________________________________________________________________________
SIGNATURE: DATE:
________________________________________________________________________________
Please Print Name:
________________________________________________________________________________
SIGNATURE: DATE:
________________________________________________________________________________
Please Print Name:
________________________________________________________________________________
SIGNATURE: DATE:
________________________________________________________________________________
Please Print Name:
________________________________________________________________________________
FOR XXXXXXX, XXXXX & CO. USE ONLY
________________________________________________________________________________
Account Representative Receiving Account Manager Reviewing Account
________________________________________________________________________________
Date Date
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