EXHIBIT 2 TO SCHEDULE 13D
CLIENT AGREEMENT
In consideration of your opening one or more accounts for me ("we", "us"
and "our" are each substituted for "I", "me" and "my", respectively. In the case
of multiple account holders, corporations and other entities), and your agreeing
to act as broker/dealer for me for the extension of credit and in the purchase
or sale of securities, commodities, options and other property, it is agreed in
respect to any and all accounts, whether upon margin or otherwise, which I now
have or may at any future time have with Xxxxxxx Xxxxx Xxxxxx Inc. or its direct
or indirect subsidiaries and affiliates or their successors or assigns
(hereinafter referred to as "you" or "your" or "SSB"), that:
1. All transactions entered into under this Agreement shall be subject to
any applicable constitution, rules, regulations, customs and usages of the
exchange or market and its clearinghouse, if any, where such transactions are
executed by SSB or its agents and to all applicable laws, rules and regulations
of governmental authorities and self-regulatory agencies. Such reference to the
"constitution, rules, regulations customs and usages of the exchange" shall in
no way be construed to create a cause of action arising from any violation of
such constitution, rules, regulations, customs and usages. If any provision is
enacted that would be inconsistent with any of the provisions of this Agreement,
the provision so affected shall be deemed modified or superseded by the
enactment, but the remaining provisions of this Agreement shall remain in
effect. Except as herein provided, no provision of this Agreement may be waived,
altered, modified or amended unless the same is in writing and signed by an
authorized official of SSB.
2. I agree that all property which I own or in which I have an ownership
interest, whether owned individually, jointly or in the name of another person
or entity, which at any time may be in your possession or control for any
purpose, including safekeeping, shall be subject to a continuing security
interest, lien and right of set-off for the discharge and satisfaction of any
debts or obligations however arising that I may owe to SSB at any time and for
any reason. SSB may at its discretion hold such property until my debts or
obligations to SSB are fully satisfied or SSB may apply such property and the
proceeds of the liquidation of such property toward the satisfaction of my debts
and obligations and I will remain liable to SSB for any deficiency. In enforcing
your security interest, you shall have the discretion to determine which
property is to be sold and the order in which it is to be sold and shall have
all the rights and remedies available to a secured party under the New York
Uniform Commercial Code. Without your prior written consent, I will not cause or
allow any of the collateral held in my account(s), whether not owned or
hereafter acquired, to be or become subject to any liens, security interests,
mortgages or encumbrances of any nature other than your security interest.
Without limiting the generally of the foregoing, I hereby authorize SSB to
automatically liquidate any money market fund shares or withdraw any savings
deposit balances available in
my account(s) from time to time to cover any of my indebtedness or obligations
whenever in your discretion you consider it necessary for your protection.
You are authorized without further direction from me to invest any eligible
free credit balances in any of my accounts in the money market fund that I have
chosen. If I fall to choose a money market fund, you are authorized to make this
choice on my behalf. All such investments commonly called "sweeps" shall be
governed by SSB's prevailing terms and conditions as they may exist from time to
time.
If I have elected the Insured Deposit Account ("XXX") feature as my sweep,
you are authorized without further direction from me to invest eligible free
credit balances in my accounts in savings deposits at the depository
institutions in the order set forth on the list furnished to me from time to
time. I understand that you may amend the list of depository institutions and
that I may eliminate depository institutions from the list at any time. If my
funds invested through the XXX feature reach the maximum amount that I have
authorized you to so invest or that may be so invested, you are authorized to
invest excess eligible free credit balances in the money market fund I have
chosen or you have chosen pursuant to my authorization. I have read the XXX
Disclosure Document and agree to be bound by its terms and conditions.
"Property" as used anywhere in this Agreement shall include, but not be
limited to, investment property, securities and commodities accounts, securities
of all kinds, money savings deposits, certificates of deposit bankers'
acceptances, commercial paper, options, commodities or securities, and the
distributions, proceeds, products and accessions of any of the above. All
property held in a securities account shall be treated as a final asset under
Article 8 of the New York Uniform Commercial Code.
3. In case of the sale of any security, commodity, or other property at my
direction and the inability of SSB to deliver the same to the purchaser by
reason of my failure to supply them to SSB, I authorize SSB to borrow any
security, commodity, or other property necessary to make delivery thereof, and I
hereby agree to be responsible for any loss which SSB may sustain thereby and
any premiums, interest or other costs which SSB may be required to pay as a
result of such borrowing, and for any loss or cost which SSB may sustain by
reason of its inability to borrow the security, commodity, or other property
sold.
I agree that if I utilize your services to receive or issue funds by wire
(wire transfers), I am responsible for the issuance of accurate and complete
instructions in relation to said wire transfers and I will hold you harmless
from all liabilities if I fail to fulfill this responsibility. I further agree
that should I incur a loss in connection with a wire transfer as a result of
negligence or other activities of your part, your liability will be limited to
the actual amount of the misdirected or misapplied funds and no other damages of
any other nature including consequential damages will be recoverable.
You may charge my account(s) with such usual and customary charges as you
may determine to cover your services and facilities, including, but not limited
to, custody and transactions fees. I will promptly pay SSB any deficiency that
might arise in my account(s). I
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understand and agree that a finance charge may be charged on any debit balance
in any cash account I have with SSB in accordance with the terms described in
the SSB literature previously provided to me and any subsequent modifications
thereto which will be provided to me. You may transfer excess funds between any
of my accounts (including commodity accounts) for any reason not in conflict
with the Commodity Exchange Act or any other applicable law. If any transactions
are effected on an exchange in which a foreign currency is used, any profit or
loss as a result of a fluctuation in the exchange rate will be charged or
credited to my account(s).
4. Communications may be sent to the mailing address on file with you, or
at such other address as I may hereafter give in writing, and all communications
so sent, whether by mail, telegraph, messenger or otherwise, shall be deemed
given to me personally, whether actually received or not. I acknowledge that the
rules of the Securities and Exchange Commission require that certain
communications be sent to me rather than an agent acting on my behalf. I warrant
that the address currently on file with you is an address where I personally
receive communications unless it is the address of a qualified custodian as
defined by the Securities and Exchange Commission. Transactions entered into for
my account(s) shall be confirmed in writing to me where required by applicable
law or regulation. In addition, SSB shall provide me with periodic statements
reflecting activity in such account(s). I agree that transactions reflected on
such confirmations and statements shall be conclusively deemed accurate as
stated unless I notify SSB in writing within three (3) days and ten (10) days of
receipt, respectively, that the information contained in such confirmation or
statement is inaccurate. Such notice must be sent by me to SSB by telegram or
letter directed to the attention of the Branch Office Manager of the office
servicing the account. Failure to so notify SSB shall also preclude me from
asserting at any later date that such transaction was unauthorized.
I authorize you at your discretion to obtain reports and to provide
information to others concerning my credit standing and my business conduct. You
may ask credit reporting agencies for consumer reports of my credit history.
Upon my request you will inform me whether you have obtained any such consumer
reports and if you have, you will inform me of the name and address of the
consumer reporting agency that furnished the reports to you.
5. I hereby represent that I am of the age of majority. Unless I advice you
to the contrary, in writing, and provide you with a letter of approval from my
employer, where required, I represent that I am 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 of any exchange, or of a member firm or member corporation
registered on any exchange, or of any corporation, firm or individual engaged in
the business of dealing, either as a broker or as principal, in securities,
bills of exchange, acceptances or other forms of commercial paper, I further
represent that no one except those signing this agreement has an interest in my
account.
If my account has been introduced to you and is carried by you only as a
clearing broker, I agree that you are not responsible for the conduct of the
introducing broker and your only responsibilities to me relate to the execution,
clearing and bookkeeping of transactions in my accounts.
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6. Arbitration
o Arbitration is final and binding on the parties.
o The parties are waiving their right to seek remedies in court,
including the right to jury trial.
o Pre-arbitration discovery is generally more limited than and
different from court proceedings.
o The arbitrators' award is not required to include factual
findings or legal reasoning, and any party's right to appear 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.
I agree that all claims or controversies, whether such claims or
controversies arose prior, on or subsequent to the date hereof, between me and
SSB and/or any of its present or former officers, directors, or employees
concerning or arising from (i) any account maintained by me with SSB
individually or jointly with others in any capacity; (ii) any transaction
involving SSB or any predecessor firms by merger, acquisition or other business
combination and me, whether or not such transaction occurred in such account or
accounts; or (iii) the construction, performance or breach of this or any other
agreement between us, any duty arising from the business of SSB or otherwise,
shall be determined by arbitration before, and only before, any self-regulatory
organization or exchange of which SSB is a member. I may elect which of these
arbitration forums shall hear the matter by sending a registered letter or
telegram addressed to Xxxxxxx Xxxxx Xxxxxx Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attn: Law Department. If I fail to make such election
before the expiration of five (5) days after receipt of a written request from
SSB to make such election, SSB shall have the right to choose the forum.
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 form 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.
7. The provisions of this Agreement shall be continuous, shall cover
individually and collectively all accounts which I may open or reopen with SSB,
and shall inure to the benefit of SSB's present organization, and any successor
organization or assigns; and shall be binding upon
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my heirs, executors, administrators, assigns or successors in interest. Should
any term or provision of this Agreement be deemed or held to be invalid or
unenforceable, the remaining terms and provisions shall continue in full force
and effect. Except for statutes of limitation applicable to claims, this
Agreement and all terms herein shall be governed and construed in accordance
with the laws of the State of New York without giving effect to principles of
conflict of laws. The statute of limitations applicable to any claim shall be
that which would be applied by the courts of the state in which I reside.
8. I understand that you may in your sole discretion prohibit or restrict
trading of securities or substitution of securities in any of my accounts. You
have the right to terminate any of my account (including multiple owner
accounts) at any time by notice to me. The provisions of this agreement shall
survive the termination of any account.
9. Your failure to insist at any time upon strict compliance with any term
of this Agreement, or any delay or failure on your part to exercise any power or
right given to you in this Agreement, or a continued course of such conduct on
your part shall at no time operate as a waiver of such power or right, nor shall
any single or partial exercise preclude any other further exercise. All rights
and remedies given to you in this Agreement are cumulative and not exclusive of
any other rights or remedies which you otherwise have.
10. I understand that SSB shall not be liable for loss caused directly or
indirectly by government restrictions, exchange or market rulings, suspension of
trading, war, strikes or other conditions, commonly known as "acts of God,"
beyond SSB's control.
11. From time to time you may at your discretion, make loans to me for a
purpose other than purchasing, carrying or trading in securities ("Express
Credit Loans"). Express Credit Loans will be made in a nonsecurities credit
account ("Express Credit Account"). The minimum and maximum amount of any
particular loan may be established by you in your discretion regardless of the
amount of collateral delivered to you and you may change such minimum and
maximum amounts from time to time.
I agree not to use the proceeds of any Express Credit Loan to purchase,
carry or trade in securities. I also agree not to use Express Credit Loan
proceeds directly or indirectly to repay other debt that I incur for the purpose
of purchasing, carrying or trading in securities.
Additional Terms for Multiple Party Accounts
Paragraphs 12 through 14 apply only to multiple party accounts.
12. If this a multiple party account, in consideration of you and your
successors carrying a multiple party account on margin or otherwise for the
undersigned, each of us agrees to be jointly and severally liable for said
account and to pay on demand any debit balance or losses at any time due in this
account. Any of us have full power and authority to make purchases and sales,
including short sales, to withdraw monies and securities from, or to do anything
else with reference to our account, either individually or in our joint names,
and you and your successors are authorized and directed to act upon instructions
received from any of us and
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to accept payment and securities from any of us for the credit of this account.
Notwithstanding the ability of each of us to control the account individually,
we understand and agree that you may, at your sole option, require written
instructions signed by all account owners when payments or transfers are
requested. Any and all notices, communications, or any demands for margin sent
to any of us shall be binding upon all, and may be given by mail or other means
of communication. We hereby declare this account to be a joint tenancy with
rights of survivorship unless we instruct you to establish another form of
multiple ownership by executing a tenancy in common agreement, community
property agreement, partnership agreement or other applicable agreement
evidencing the desires form of ownership.
13. Each of us agrees to hold SSB harmless form and indemnify SSB against
any losses, causes of action, damages and expenses arising from or as the result
of SSB following the instructions of either or any of us. SSB, in its sole
discretion, may at any time suspend all activity in the multiple party account
pending instructions from a court of competent jurisdiction or require that
instructions pertaining to the multiple party account or the property therein be
in writing signed by both or all of us. SSB shall be entitled to recover from
the account or from any of us prior to distribution of the funds or property
therein such costs as it may incur, including reasonable attorney's fees, as the
result of any dispute between or among us relating to or arising from the
account.
14. Each of us agrees that, in the event of the death or either or any of
us, the survivor or survivors shall immediately give you written notice thereof,
and you may, before or after receiving such notice, take such actions, require
such papers, inheritance or estate tax waivers, retain such portion of the
account and restrict transactions in the account as you may deem advisable to
protect you against any tax, liability, penalty or loss under any present or
future laws or otherwise. The estate of either or any of us who shall have died
shall be liable and each survivor shall continue liable, jointly and severally,
to you for any net debit balance or loss in said account in any way resulting
from the completion of transactions initiate prior to the receipt by you of the
written notice of the death of the decedent, or incurred in the liquidation of
the account or the adjustment of the interests of the respective parties.
If this account contains rights of survivorship, in the event of the death
of either or any of us, all assets in the account shall pass to and be vested in
the survivor or survivors on the same terms and conditions as previously held,
without in any manner releasing the decedent's estate from the liabilities
provided for herein. The estate of the decedent(s) and the survivors hereby
jointly and severally agree to fully indemnify and hold harmless SSB from all
liability for any taxes which may be owed in connection therewith or any claims
by third parties.
Margin Agreement
Paragraphs 15 through 17 apply only to Margin Accounts
15. You are hereby authorized, without notice to me, and without regard as
to whether or not you have in your possession or under your control at the time
thereof other property of the same kind and amount, to pledge, repledge,
hypothecate or rehypothecate my property or any part
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thereof, either separately or together with other property of other clients,
either for the amount due from me or for a greater sum.
16. I agree to pay ON DEMAND any balance owing with respect to any of my
accounts, including interest and commissions and any costs of collection
(including attorneys' fees, if incurred by you.) I understand that you may
demand full payment of the balance due in my account plus any interest charges
accrued thereon, at your sole option, at any time without cause and whether or
not such demand is made for your protection. I understand that all loans made
are not for any specific term or duration but are due and payable at your
discretion upon a demand for payment made to me. I agree that all payments
received for my account(s) including interest, dividends, premiums, principal or
other payments may be applied by you to any balances due in my account(s). If I
maintain both a cash and a margin account with you, you are authorized in your
discretion to utilize the equity in either type of account in satisfaction of
any maintenance margin requirement without the actual transference of funds or
securities between such accounts.
Whenever you deem it necessary or appropriate for your protection, you are
authorized, in your sole discretion, to sell, assign, transfer and deliver all
or any part of my property which may be in your possession or control in any
manner you deem appropriate, make any necessary purchases to cover short sales
and/or any open commodity contract positions and/or to cancel any outstanding
orders in order to close out the account. Without limiting the generality of the
foregoing, such sale, purchase or cancellation may be made, in your sole
discretion, on the exchange or other market where such business i then usually
transacted, at public auction or at private sale without advertising the same.
All of the above may be done without demand for margin or notice of purchase,
sale or cancellation to me. No demand for margin, or notice given to me of
intent to purchase or sell property or to cancel orders in my account, shall
impose on you any obligation to make such demand or provide such notice to me.
Any such notice or demand is hereby expressly waived, and no specific demand or
notice shall invalidate this waver. After deducting all costs and expenses of
the purchase and/or sale and deliveries, including, but not limited to,
commission and transfer and stamp taxes, you shall apply the residue of the
proceeds to the payment of any and all of my liabilities to you, and I shall
remain liable for any deficiency. Upon any such sale, you may purchase the whole
or any part thereof free from any right of redemption. In the event of my death
or incompetency, the authority given by this Paragraph shall continue effective
and shall be binding upon my personal representatives and heirs.
17. I will at all times maintain such margin for my account maintained by
SSB, as SSB may require from time to time, and any debit balances arising in
such account shall be charged interest in accordance with the terms described in
the SSB literature previously provided to me and any subsequent modifications
thereto which will be provided to me. I am aware that interest charges, if not
paid, will be added to the debit balance in my account for the next interest
period. I am aware that you may impose, for my account(s), margin requirements
more stringent than those required by law or exchange regulations. I further
understand and agree that such margin requirements may be changed and modified
by you from time to time without prior notice
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to me. I further agree that any waiver by you or failure to promptly enforce, as
to my account or that of others, such margin requirements shall not in any way
prevent you from subsequently enforcing said margin requirements with regard to
my account.
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