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Exhibit 16(d)-7
DOC CODE 204
PROFESSIONAL ACCOUNT AGREEMENT BEAR XXXXXXX
The Bear Xxxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
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Title: Verde Investments, Inc. Account or Family No.:
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PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms and conditions on 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 and 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 subsidiaries
being collectively referred to hereinafter as "Bear Xxxxxxx").
2. APPLICABLE LAWS, RULES 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 rules and
regulations of 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; REGISTRATION OF SECURITIES. 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 or 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 and, as such, each
Bear Xxxxxxx entity shall comply with any orders or instructions originated by
any other Bear Xxxxxxx entity with respect to such security without your
further consent. You represent that all of 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 commencement of a 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 account(s) with any Bear Xxxxxxx entity, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as determined
by Bear Xxxxxxx in its sole discretion (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 any or all agreements you may then have with
any Bear Xxxxxxx entity, whether heretofore or hereafter entered into. In the
event of any 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 exercise
any and all options and other rights, to accelerate, cancel, terminate,
liquidate, close out and net the settlement payments and/or delivery
obligations under 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 incurred or 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 to or from itself or third parties free of any
right of redemption. In addition, each Bear Xxxxxxx entity 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, 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. (New York time) on the business day
immediately following the trade date shall be conclusive if not objected to by
12:00 noon (New York time) on that day or, if such reports are provided or made
available to you after 10:00 a.m. (New York time) on the business day
immediately following the trade date, 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 within fifteen (15) 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 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 not paid at
the close of an interest
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period will be added to the opening balance for the next interest period.
9. CLEARANCE ACCOUNTS. If any of your accounts 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 introducing 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 your 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 provisions, shall be applicable to
all matters between or among any of you, your broker and its employees and Bear
Xxxxxxx and its employees.
10. COLLECTION AND OTHER ACCOUNT-RELATED COSTS. You hereby agree to pay,
on demand, all reasonable direct and indirect costs, liabilities and damages
incurred by Bear Xxxxxxx (including, without limitation, costs of collection,
attorneys' 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 third-party system or (iv) Bear Xxxxxxx' acting in reliance upon
your instructions, including, but not limited to instructions transmitted via
facsimile from the undersigned or its authorized agents or, if your account is
introduced to Bear Xxxxxxx by another broker, the instructions 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) for any and all such
costs, including, without limitation, costs incurred in connection with the
liquidation of any 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 have been 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 of 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 and other communications (including, without
limitation, margin calls) delivered, faxed, sent by express delivery service 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. Margin calls may also be 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 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 ACCOUNT. 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 and 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 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 deposit promptly 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 paragraphs 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 advise Bear Xxxxxxx in writing 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 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 Bear Xxxxxxx 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 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, claim, 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 of time and utilize the same procedures
it utilizes when clearing
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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 harmless Bear
Xxxxxxx from all 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) that will set
forth the terms and conditions 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 such 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 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 the 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 herby 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 25, 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 hereby agree that this Agreement and all of the
terms hereof shall be binding upon you and 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 such modification, 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 outstanding
liabilities and obligations. Otherwise, this Agreement may not be 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 LAW OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES
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 APPEAL 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 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
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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. THE
AWARD OF THE ARBITRATORS, OR OF A MAJORITY OF THEM, SHALL BE FINAL, AND
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL,
HAVING JURISDICTION.
25. SEVERABILITY. If and to the extent any term or provision herein 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 hereof 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 intention of such invalid or unenforceable term or provision.
26. LIMITATION OF LIABILITY. Bear Xxxxxxx shall not be liable for any
losses caused directly or indirectly by any inability of Bear Xxxxxx to perform
occasioned by suspension of trading, wars, civil disturbances, strikes, natural
calamities, labor or material shortages, government restrictions, acts or
omissions of exchanges, specialists, markets, clearance organizations or
information providers, delays in mails, delays or inaccuracies in the
transmission of orders or information, governmental, exchange or self-regulatory
organization laws, rules or actions, or any other causes beyond Bear Xxxxxxx'
control, or for any consequential, incidental, punitive, special or indirect
damages, economic loss or lost profits, even if Bear Xxxxxxx has been advised of
the possibility of such damages or loss.
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 or electronic
communications between you and Bear Xxxxxxx or 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
any 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 and 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 Bear Xxxxxxx entity to the extent that the subject matter thereof is
dealt with in this Agreement and the provisions of such other agreement would
deny any Bear Xxxxxx 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 and protect the security interest
granted 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 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 original.
ALL ACCOUNTS PLEASE COMPLETE THIS INFORMATION AND SIGN ON THE FOLLOWING PAGE AS
APPROPRIATE:
THIS AGREEMENT IS DATED AS OF 4/12 , 1999
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Verde Investments, Inc.
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NAME OF ACCOUNT OWNER
0000 X. Xxxxxxxxx, Xxxxx 0000 XXX
--------------------------------- -----------------------------
STREET ADDRESS COUNTRY
Xxxxxxx, XX 00000 4219
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CITY, STATE ZIP CODE+4
