EXHIBIT 99.2
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms and conditions
under which Bear, Xxxxxxx Securities Corp., Bear, Xxxxxxx & Co., Inc., and
the successors and assigns (collectively "Bear Xxxxxxx") will transact
business with you including but not limited to the maintenance of your
account(s). If the accounts are cash accounts and you have fully paid for all
securities therein, the provisions of paragraphs 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 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. DEBT 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 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 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 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 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
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 by 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.
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.
- ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
- 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 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 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 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 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 futures, 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 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.
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_____.
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(Typed or Printed Name)
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(Signature) (Mailing Address)
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(Typed or Printed Name) Account No.:_______________________
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(Signature) Date:______________________________
