Exhibit 10.19
Pershing
FULLY DISCLOSED CLEARING AGREEMENT
OF
PERSHING DIVISION
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
THIS AGREEMENT is made and entered into this 28th day of December 2000 by and
between the Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("Pershing"), a Delaware Corporation, and X.X. Xxxxxxx & Company
("Broker"), a Wisconsin Corporation.
1.0 APPROVAL
This Agreement shall be subject to approval by the New York Stock
Exchange, Inc. ("NYSE") and by any other self-regulatory organization vested
with the authority to review or approve it. Pershing shall submit this
Agreement to the NYSE and Broker shall submit the Agreement to any other such
organization from which Broker is required to obtain approval. In the event of
disapproval, the parties shall bargain in good faith to achieve the requisite
approval.
2.0 AGREEMENT
From the date of this Agreement until the termination of this
Agreement as provided in Paragraph 22 hereof, Pershing shall carry the
proprietary accounts of Broker and the cash and margin accounts of the
customers of Broker introduced by Broker to Pershing, and accepted by
Pershing, and shall clear transactions on a fully disclosed basis for such
accounts, in the manner and to the extent set forth in this Agreement.
3.0 ALLOCATION OF RESPONSIBILITY
3.1 Responsibilities of the Parties.
-------------------------------
Pursuant to NYSE Rule 382, responsibility for compliance with
applicable laws, rules, and regulations of the Securities and Exchange
Commission ("SEC"), the National Association of Securities Dealers, Inc.
("NASD"), the NYSE, and any other regulatory or self-regulatory agency or
organization (collectively the "Rules") shall be allocated between Pershing
and Broker as set forth in this Agreement. To the extent that a particular
function is allocated to one party under this Agreement, the other party shall
supply that party with information in its possession pertinent to the
performance and supervision of that function.
Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
3.2 Relationship with Customers.
---------------------------
Except as provided in Paragraph 27.11 of this Agreement, all
customers receiving services pursuant to this Agreement shall remain customers
of Broker. Pershing shall provide services under this Agreement to Broker only
to the extent explicitly required by specific provisions contained in this
Agreement and shall not be responsible for any duties or obligations not
specifically allocated to Pershing pursuant to this Agreement. Broker shall
enter into appropriate contractual arrangements with customers on its own
behalf, and such agreements shall make Broker, and not Pershing, responsible
to customers for the provision of services. Broker shall not be deemed to be
an agent of Pershing for any purpose, nor shall Pershing be deemed to have a
fiduciary relationship with any of Broker's customers. Broker acknowledges
that Pershing does not control the business or operations of Broker.
4.0 REPRESENTATIONS AND WARRANTIES
4.1 Broker. Broker represents and warrants that:
------
4.1.1 Corporation Duly Organized. Broker is a corporation duly organized,
--------------------------
validly existing, and in good standing under the laws of the state of its
incorporation.
4.1.2 Registration. Broker is duly registered and in good standing as a
------------
broker-dealer with the SEC.
4.1.3 Authority to Enter Agreement. Broker has all requisite authority,
----------------------------
whether arising under applicable federal or state law or the rules and
regulations of any regulatory or self-regulatory organization to which Broker
is subject, to enter into this Agreement and to retain the services of
Pershing in accordance with the terms of this Agreement.
4.1.4 Material Compliance with Rules and Regulations. Broker and each of its
----------------------------------------------
employees is in material compliance with, and during the term of this
Agreement shall remain in material compliance with, the registration,
qualification, capital, financial reporting, customer protection, and other
requirements of every self-regulatory organization of which Broker is a
member, of the SEC, and of every state to the extent that Broker or any of its
employees is subject to the jurisdiction of that state.
4.1.5 No Pending Action, Suit, Investigation, or Inquiry. Broker has
--------------------------------------------------
disclosed to Pershing every material action, suit, investigation, inquiry, or
proceeding (formal or informal) pending or threatened against or affecting
Broker, any of its affiliates, or any officer, director, or general securities
principal or financial and operations principal of Broker, or their respective
property or assets, by or before any court or other tribunal, any arbitrator,
any governmental authority, or any self-regulatory organization of which any
of them is a member. Broker shall notify Pershing promptly, of the initiation
of any such action, suit, investigation, inquiry, or proceeding that may have
a material impact on the capital of Broker.
4.1.6 Broker Responsibility. Broker shall be responsible for all internal
---------------------
operations related to its business including without limitation (i) all
accounting, bookkeeping, record-keeping, cashiering, commodity transactions,
or any other transactions not involving securities; or any matter not
contemplated by the Agreement; (ii) preparation of Broker's payroll records,
financial statements, or any analysis thereof; (iii) preparation or issuance
of checks in payment of Broker's expenses, other
than expenses incurred by Pershing on behalf of Broker pursuant to this
Agreement; and (iv) payment of commissions to Broker's sales personnel.
4.2 Pershing. Pershing represents and warrants that:
--------
4.2.1 Corporation Duly Organized. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
--------------------------
Corporation ("DLJ") is a corporation duly organized, validly existing, and in
good standing under the laws of the state of Delaware.
4.2.2 Registration. DLJ is duly registered and in good standing as a broker
------------
dealer with the SEC and is a member firm in good standing of the NYSE and the
NASD.
4.2.3 Authority to Enter Agreement. DLJ has all requisite authority, whether
----------------------------
arising under applicable federal or state law, or the rules and regulations of
any regulatory or self-regulatory organization to which DLJ is subject, to
enter into this Agreement and provide services in accordance with the terms of
this Agreement.
4.2.4 Compliance with Registration. Pershing and each of its employees is in
----------------------------
material compliance with, and during the term of this Agreement shall remain
in material compliance with the registration, qualification, capital,
financial reporting, customer protection, and other requirements of every
self-regulatory organization of which Pershing is a member, of the SEC, and
every state.
5.0 ESTABLISHING AND ACCEPTING NEW ACCOUNTS
5.1 Acceptance of New Accounts. Broker shall be responsible for opening and
--------------------------
approving new accounts in compliance with the Rules.
5.1.1 Pershing reserves the right to reject any account which the Broker may
forward to Pershing as a potential new account. Pershing also reserves the
right to terminate any account previously accepted by it as a new account.
5.1.2 At the time of the opening of any new account, the Broker must obtain
sufficient information from its customer to satisfy itself as to the identify
of its client and the source of its funds to satisfy itself that opening the
account would not violate the provisions of various Executive Orders and
regulations issued there under by the Office of Foreign Assets Control (OFAC),
which enforces economic and trade sanctions against foreign countries and
their agents, terrorism sponsoring agencies and organizations and
international narcotics traffickers.
5.2 Maintenance of Account Information. Pershing may rely without inquiry on
----------------------------------
the validity of all customer information furnished to it by Broker. Possession
of any such documents or information, however provided, concerning Broker's
customers does not create a duty on the part of Pershing to review or
understand the content of those documents.
5.3 Pershing Operations Manual. Broker acknowledges receipt and familiarity
--------------------------
with the Pershing "Quick Reference Guide" and "Bulletins" and agrees to
familiarize itself with any modifications or supplements to such documents
that may be issued from time to time.
6.0 SUPERVISION OF ORDERS AND ACCOUNTS
6.1 Responsibility for Compliance. Broker shall be solely responsible for
-----------------------------
compliance with suitability, "Know Your Customer" rules, and other
requirements of federal and state law and regulatory and self-regulatory rules
and regulations governing transactions and accounts. Possession by Pershing of
surveillance records, exception reports, or other similar data shall not
obligate Pershing to review or be aware of their contents. Pershing shall not
be required to make any investigation into the facts surrounding any
transaction that it may execute or clear for Broker or any customer of Broker.
6.2 Compliance Procedures. Broker agrees to supervise compliance with the
---------------------
Rules. Broker shall review transactions and accounts to assure compliance with
prohibitions against manipulative practices and xxxxxxx xxxxxxx and other
requirements of federal and state law and applicable regulatory and self-
regulatory rules and regulations to which Broker or its customer are subject.
Without limiting the above, Broker shall be responsible for compliance with
the supervisory requirements in Section 15(b)(4) of the Securities Exchange
Act of 1934, as amended, NASD Rule 3010, NYSE Rules 342, 351 and 431, and
similar rules adopted by any other regulatory or self-regulatory agency or
organization, to the extent applicable.
6.3 Knowledge of Customer's Financial Resources and Investment Objectives.
---------------------------------------------------------------------
Broker shall comply with Rule 405(1) of the NYSE or comparable requirements of
similar rules of any other regulatory or self-regulatory organization to which
Broker is subject. Broker shall obtain all essential facts relating to each
customer, each cash and margin account, each order, and each person holding a
power of attorney over any account, in order to assess the suitability of
transactions (when required by applicable rules), the authenticity of orders,
signatures, endorsements, certificates, or other documentation, and the
frequency of trading. Broker warrants that, to the best of its knowledge,
Broker will not open or maintain accounts for persons who are minors or who
are otherwise legally incompetent and that Broker will comply with NYSE Rule
407 and other laws, rules, or regulations that govern the manner and
circumstances in which accounts may be opened or transactions authorized.
6.4 Furnishing of Investment Advice. Broker shall be solely responsible for
-------------------------------
any recommendation or advice it may offer to its customers.
6.5 Discretionary Accounts. Broker shall be solely responsible for obtaining
----------------------
customer approval for and supervising discretionary accounts.
6.6 Obligations Regarding Certain Disclosures. Broker shall make any
-----------------------------------------
disclosures and obtain any agreements from its customers required by
applicable law or regulation, including, without limitation, any disclosures
or agreements required for listed options, xxxxx stocks, or derivative
securities. In the case of listed options, the customer shall execute option
agreements that are satisfactory to Pershing.
7.0 EXTENSION OF CREDIT
7.1 Presumption of Cash Account. Pershing may, but is not required to, permit
---------------------------
customers of Broker to purchase securities on margin, but all transactions for
a customer will be deemed to be cash transactions, and payment for those
transactions will be required in the manner applicable to cash transactions,
unless, on or prior to settlement, Broker has furnished Pershing with an
executed margin agreement and consent to loan of securities.
7.2 Margin Requirements. Margin accounts introduced by Broker shall be
-------------------
subject to Pershing's margin requirements as in effect from time to time.
Pershing reserves the right to refuse to accept any transaction in a margin
account without the actual receipt of the necessary margin and to impose a
higher margin requirement for a particular account when, in Pershing's
discretion, the past history or nature of the account or other factors or the
securities held in it warrant such action. In all instances, Broker may
require higher margin than imposed by Pershing for any particular account,
group of accounts, or all accounts introduced by Broker to Pershing.
In any case where Broker requests Pershing to extend credit upon control or
restricted securities, pursuant to Rule 144 under the Securities Act of 1933,
as amended, or otherwise; Broker shall submit to Pershing such documentation,
agreements and information as shall be reasonably required by Pershing to
decide to extend such credit. Any extension of credit so approved shall be
subject to Pershing's credit policies as shall be in effect from time to time.
7.3 Margin Maintenance and Compliance with Regulation T and SEC
Rule 15c3-3(m).
-----------------------------------------------------------
7.3.1 Initial Margin. Broker shall be responsible for the initial margin
--------------
requirement for any transaction until such initial margin has been received by
Pershing in acceptable form. Pershing shall be responsible for notifying
Broker for any margin due in a customer's account.
7.3.2 Margin Calls. After the initial margin for a transaction has been
------------
received, subsequent margin calls may be made by Pershing at its discretion.
Pershing shall calculate the maintenance requirement and notify Broker of any
amounts due. Broker shall be responsible for issuing the margin call to its
customer and obtaining the amount due directly from Broker's customer. If
Broker fails to take the appropriate action, Pershing reserves the right to
collect the amount due directly from Broker's customer. Broker agrees to
cooperate with Pershing in complying with and obtaining margin in response to
such calls.
7.3.3 Actions Upon Failure to Meet Margin Calls or Deliver Securities. In the
---------------------------------------------------------------
event that satisfactory margin is not provided within the time specified by
Pershing, or securities sold are not delivered as required, Pershing may take
such actions as Pershing deems appropriate, including, but not limited to,
entering orders to buy in or sell-out. Broker shall cooperate with Pershing by
entering orders to buy-in or sell-out securities. Compliance with a request to
withhold action shall not be deemed a waiver by Pershing of any of its rights
under this Agreement.
7.4 Charging of Interest and Disclosures Pursuant to Rule lOb-16. Interest
------------------------------------------------------------
charged with respect to debit balances in customers' accounts shall be
determined in accordance with Schedule A attached to this Agreement. Broker
shall send each margin customer a written disclosure statement, in a form
acceptable to Pershing, at the time of the opening of a margin account as
required by SEC Rule lOb-16.
7.5 Unsecured Debits or Unsecured Short Positions. Pershing shall charge
---------------------------------------------
against the accounts of Broker an amount equal to the value of any unsecured
debit or short position (on a "xxxx to market" basis) in a customer account if
that position has not been promptly resolved by payment or delivery. Any
remaining debit may be charged against Broker pursuant to Paragraph 19 of this
Agreement.
8.0 MAINTENANCE OF BOOKS AND RECORDS
8.1 Stock Records. Pershing shall maintain stock records and other prescribed
-------------
books and records of all transactions executed or cleared through it.
8.2 Regulatory Reports and Records. Broker shall prepare, submit, and
------------------------------
maintain copies of all reports, records, and regulatory filings required of
Broker by any entity that regulates it, including, but not limited to, copies
of all account agreements and similar documentation obtained pursuant to
Paragraph 5.0 of this Agreement and any reports and records required to be
made or kept under the Currency and Foreign Transactions Reporting Act of
1970, (the "Bank Secrecy Act"), and any rules and regulations promulgated
pursuant thereto.
8.3 Broker's Anti-Money Laundering and OFAC Reporting and Recordkeeping and
-----------------------------------------------------------------------
Obligations. Broker recognizes that it is obligated to comply with, among
-----------
others, the following anti-money laundering and OFAC legal and regulatory
rules, and reporting and recordkeeping requirements including:
8.3.1 SEC Rule 17a-8 relating to "Financial recordkeeping and reporting of
currency and foreign transactions".
8.3.2 Rules of the self-regulatory organizations relating to currency
reporting, suspicious activity reporting, and related recordkeeping
requirements.
8.3.3 Applicable state reporting and recordkeeping requirements with regard
to certain currency transactions, transportation of currency or
monetary instruments, or reports of suspicious activity.
8.3.4 Federal, state, and international criminal and civil prohibitions
against money laundering, including, among others, the Money Laundering
Act of 1986 as applicable. The federal regulations and Executive Orders
imposed by the OFAC which prohibit, among other things, the engagement
in transactions with and the provision of services to certain embargoed
foreign countries and specially designated nationals, specially
designated narcotics traffickers and other blocked parties.
8.3.5 To the extent permissible by law, at the time of filing of any required
reports or other communication, or at such time as requested by
Pershing, Broker will provide Pershing with copies of all reports or
other communications with regard to the introduced accounts filed with
the U.S. Treasury Department or any regulatory body or organization
relating to the reporting of currency transactions, the transfer of
currency or monetary instruments into or outside of the United States,
suspicious activity, including, but not limited to, Currency or
Monetary International Reports (CMIRs), Cash Transaction Reports
(CTRs), and Suspicious Activity Reports (SARs), Broker also shall
advise Pershing of all reports made to OFAC with regard to the
introduced accounts.
8.3.6 Pershing reserves the right to make and file such reports where it
deems it appropriate for its own protection. Broker recognizes that
when Pershing does so, Pershing does not thereby assume any
responsibility for such services and/or relieve the Broker of any
responsibility for such services. Furthermore, to the extent that
Pershing is required to prepare or submit any reports or records by any
entity that regulates it, Broker shall cooperate in providing Pershing
with any information needed in order to prepare such reports or
records.
8.4 Audio Taping of Telephone Conversations. Each party understands that for
---------------------------------------
quality control, dispute resolution or other business purposes, the parties
may record some or all telephone conversations between them. Each party hereby
consents to such recording and will inform its employees, representatives and
agents of this practice. It is further understood that all such conversations
are deemed to be solely for business purposes.
9.0 RECEIPT AND DELIVERY OF FUNDS AND SECURITIES
9.1 Receipt and Delivery of Funds and Securities.
--------------------------------------------
9.1.1 Cashiering Functions. Pershing shall perform cashiering functions for
--------------------
accounts introduced by Broker. These functions shall include receipt and
delivery of securities; receipt and payment of funds owed by or to customers;
and provision of custody for securities and funds. Broker shall provide
Pershing with the data and documents that are necessary or appropriate to
permit Pershing to perform its obligations under this Paragraph, including but
not limited to copies of records documenting receipt of customers' funds and
securities received directly by Broker. Such data and documents must be
compatible with the requirements of Pershing's data processing systems.
9.1.2 Purchases. Broker shall be responsible for purchases (including
---------
transactions on a "when issued" basis) made for customers until actual and
complete payment has been received by Pershing. Broker shall not introduce
accounts requiring settlement on a "delivery versus payment" or "receive
versus payment" basis unless such account utilizes the facilities of a
securities depository or qualified vendor as defined in NYSE Rule 387, for
all depository eligible transactions.
9.1.3 Sales. Broker shall be responsible for sales (including those on a
-----
"when issued" basis), until Pershing has received, in acceptable form, the
securities involved in the transaction. If Pershing does not receive delivery
of securities in an acceptable form, Pershing may buy-in all or part of the
securities.
9.1.4 Funds and Securities Received by Broker. Broker shall promptly deposit
---------------------------------------
with Pershing funds or securities received by Broker from its customers,
together with such information as may be relevant or necessary to enable
Pershing to record such remittances and receipts in the respective customer
accounts.
9.1.5 Failure to Settle or Pay. In the event of a failure to timely deposit
------------------------
required funds or securities, Pershing may take appropriate remedial action.
Without waiving or otherwise limiting its right to take other remedial action,
Pershing may at its option charge interest at rates as agreed in Schedule A
("Fully Disclosed Pricing Schedule") to this Agreement. Broker may pass such
charges on to its customers but Broker remains responsible therefore until
actually paid.
9.1.6 Check Writing Authority. Pershing may, but is not required to,
-----------------------
authorize certain of Broker's employees to sign checks to Broker's customers
for amounts due to, and requested by them, with respect to their accounts.
Broker shall designate, in writing, the names of any employees it wishes to
receive the authorization described in this subparagraph. All checks must be
signed by two employees who have received written authorization from Pershing.
No check or checks totaling more than $250,000 shall be provided to any
customer by Broker on the same business day. All expenses incurred in
connection with the issuance of checks under the authority described in this
subparagraph shall be charged to Broker. Broker remains responsible for the
disbursement and delivery of such checks to its customers. Any lien on the
customer's property granted by the customer to Broker or Pershing shall extend
to any funds which may be segregated in a separate account in connection with
the exercise of the authority described in this subparagraph. Broker has
established, and will maintain and enforce, supervisory procedures with
respect to the issuance of such instruments that are satisfactory to Pershing.
9.2 Restricted and Control Stock Requirements. Broker shall be responsible
-----------------------------------------
for determining whether any securities held in Broker's or its customer
accounts are restricted or control securities as defined by applicable laws,
rules, or regulations. Broker is responsible for assuring that orders and
other transactions executed for such securities comply with such laws, rules,
and regulations.
9.3 Corporate Action Requests/Soliciting Dealer Agreements. Broker requests
------------------------------------------------------
and authorizes Pershing to execute as Broker's agent-in-fact any and all
Soliciting Dealer Agreements for corporate actions involving securities or
other interests held by Broker's customers on the books of Pershing. Pershing
agrees to provide notice of the pending corporate action to Broker at its
designated locations. Pershing further agrees to collect and submit corporate
action requests from Broker and submit them to the soliciting party in
accordance with the instructions received from the soliciting party. Pershing
agrees to use its best efforts to communicate corporate action information to
Broker and, where applicable, Broker's customers, but shall not be liable for
a) any delays in the communication of corporate action information or b)
delays in the transmission of collected corporate action requests to the
soliciting party unless caused by Pershing's gross negligence. All fees
received from the soliciting party will be credited to Broker. In
consideration of providing this service to Broker, Broker agrees to indemnify
and hold harmless Pershing, its affiliates, officers, agents and employees
from all claims, suits, investigations, damages and defense costs (including
reasonable attorney's fees) that arise in connection with this paragraph.
10.0 SAFEGUARDING OF FUNDS AND SECURITIES
Except as otherwise provided in this Agreement, Pershing shall be
responsible for the safekeeping of all money and securities received by it
pursuant to this Agreement. However, Pershing will not be responsible for any
funds or securities delivered by a customer to Broker until such funds or
securities are actually received by Pershing or deposited in bank accounts
maintained by Pershing.
11.0 CONFIRMATIONS AND STATEMENTS
11.1 Preparation and Transmission of Confirmations and Statements. Pershing
------------------------------------------------------------
shall prepare confirmations and summary periodic statements and shall, to the
extent required, transmit them to customers and Broker in a timely fashion
except to the extent Broker has agreed to transmit confirmations to customers.
Confirmations and statements shall be prepared on forms disclosing that the
account is carried on a fully-disclosed basis for the Broker in accordance
with applicable rules, regulations, and interpretations. Broker will have the
ultimate regulatory responsibility for compliance with the prospectus delivery
requirements of the Securities Act of 1933, as amended, regardless of its
retention of a prospectus fulfillment service to perform delivery of same.
11.2 Examination and Notification of Errors. Broker shall examine all
--------------------------------------
confirmations, statements, and other reports in whatever medium provided to
Broker by Pershing. Broker must notify Pershing promptly of any error claimed
by Broker in any account.. If Broker fails to do so, Broker shall be deemed to
have waived its right to make any claim against Pershing with respect to such
error.
12.0 ACCEPTANCE AND EXECUTION OF TRANSACTIONS
12.1 Responsibility to Accept or Reject Trades. Pershing shall execute
-----------------------------------------
transactions in customers' accounts and release or deposit money or securities
to or for accounts only upon Broker's instructions. Pershing reserves the
right to accept written or oral transaction orders from Broker's customers in
circumstances where it determines that either (i) the customers are unable to
execute those transactions through Broker (ii) or Pershing is required to do
so by applicable or relevant law. Notwithstanding any instructions to the
contrary, Pershing may, after notifying Broker orally or in writing; (i)
refuse to confirm a transaction or cancel a confirmation, (ii) reject a
delivery or receipt of securities or money; (iii) refuse to clear a trade
executed by Broker; or (iv) refuse to execute a trade for the account of a
customer or Broker.
12.2 Responsibility for Errors in Execution. Broker shall be responsible for
--------------------------------------
transmission to Pershing of all orders and for any errors in the Broker's
recording or transmission of such orders. Pershing shall be responsible for
any errors it might make in the further transmission and execution of such
orders after their receipt, in proper and complete form, from Broker.
13.0 OTHER OBLIGATIONS AND RESPONSIBILITIES OF BROKER
13.1 Other Clearing Agreements. During the term of this Agreement, Broker
-------------------------
shall not enter into any other similar agreement or obtain the services
contemplated by this Agreement from any other party or supply the services
contemplated by the Agreement without prior written consent of Pershing.
13.2 Disciplinary Action, Suspension, or Restriction. If Broker or any of its
-----------------------------------------------
affiliates, or any officer, director, or general securities principal or
financial and operational principal of Broker, becomes subject to disciplinary
action, suspension, or restriction by a federal or state agency, stock
exchange, or regulatory or self-regulatory organization having jurisdiction
over Broker or Broker's securities or commodities business, Broker shall give
notice to Pershing immediately, orally and in writing, and provide Pershing a
copy of any decision relating to such action, suspension, or restriction.
Pershing may take any action it reasonably deems to be necessary (i) to assure
that it will continue to comply with all applicable legal, regulatory, and
self-regulatory requirements, notwithstanding such action, suspension, or
restriction; and (ii) to comply with any requests, directives, or demands made
upon Pershing by any such federal or state agency, stock exchange, or
regulatory or self-regulatory organization.
13.3 Provision of Financial Information. Broker shall furnish Pershing copies
----------------------------------
of FOCUS Reports, financial statements for the current fiscal year, the
executed Forms X- 1 7a-5 (Parts I and IIA) filed with the SEC, any amendments
to Broker's Form BD, and any other regulatory or financial reports Pershing
may from time to time require. Broker shall provide such reports to Pershing
at the time Broker files such reports with its primary examining authority.
Broker shall also notify Pershing in advance of withdrawals of more than 20
percent of its net capital.
13.4 Executing Brokers. If Broker wishes to act as an "Executing Broker" as
-----------------
such term is understood in that certain letter dated January 25, 1994, from
the Division of Market Regulation of the Securities and Exchange Commission,
as the same may be amended, modified or supplemented from time to time (the
"No-Action Letter"), then all terms herein shall have the same meaning as
ascribed thereto either in the Agreement or in the No-Action Letter as the
sense thereof shall require. Broker may, from time to time, execute trades
(either directly or through Pershing) for Prime Brokerage Accounts in
compliance with the requirements of the No-Action Letter. (The No-Action
Letter requires, inter alia, that a contract be executed between Pershing and
Prime Broker, and between Broker and Prime Brokerage Customer prior to the
transaction of any business hereunder.) Broker shall promptly notify Pershing,
but in no event later than 5:00 p.m. New York time, of trade date in a
mutually acceptable fashion, of such trades in sufficient detail for Pershing
to be able to report and transfer any trade executed by Broker on behalf of a
Prime Brokerage Account to the relevant Prime Broker. Broker understands and
agrees that if Prime Broker shall disaffirm or "dk" any trade executed by
Broker on behalf of a Prime Brokerage Account; Broker shall open an account
for such Prime Brokerage Account in its range of accounts and shall transfer
or deliver the trade to such account at the risk and expense of Broker to the
same extent as for any account introduced by Broker pursuant to this
Agreement. Broker understands and agrees that all Prime Brokerage Accounts
shall be conducted in accordance with the requirements of the No-Action Letter
and any relevant agreement between Broker and a Prime Brokerage Customer or
between Pershing and relevant Prime Broker. Broker further agrees to supply
Pershing with such documents, papers and things, which from time to time are
reasonably required by Pershing to carry out the intention of this Paragraph.
Broker agrees that it shall know its customer, obtain appropriate
documentation, including new account form, conduct its own credit check and
determine the availability of shares as required for processing of any short
sales. Broker shall maintain facilities to clear any disaffirmed trades.
13.5 Protection of Intellectual Property. Broker shall use all reasonable
-----------------------------------
efforts to preserve and protect Pershing's and its affiliates' patent, trade
secret, copyright and other proprietary rights in Pershing's or its
affiliates' products, services, trademarks and tradenames, at least to the
same extent used by Broker to preserve and protect its own proprietary data or
information and to notify Pershing of any action by any third party known by
Broker to constitute an infringement of Pershing's or any of its affiliates'
proprietary rights and to cooperate with Pershing in protecting such rights.
Without limiting the foregoing, and subject to the permission required by
Paragraph 21 hereof, Broker shall note Pershing's or its affiliates' patent,
trade secret, copyrights, trademarks and tradenames when Broker makes
reference to or distributes products or services provided by Pershing or its
affiliates, as applicable.
14.0 OTHER OBLIGATIONS AND RESPONSIBILITIES OF PERSHING
14.1 Use of Third-Party Services. Subject to Paragraph 16 hereof, Pershing
---------------------------
may, at its reasonable option, and consistent with common industry practice,
retain one or more independent data processing or other service bureaus to
perform functions (including, but not necessarily limited to, pricing services
or proxy mailing services) assigned to Pershing under this Agreement.
14.2 Backup Withholding. Broker hereby agrees to take necessary measures to
------------------
comply with the backup withholding requirements of Section 3406 and Sections
1441 through 1446 (the nonresident alien withholding requirements) of the
Internal Revenue Code of 1986, as amended, with respect to its customer
accounts. Broker agrees to furnish to Pershing any tax information (i.e.,
taxpayer identification numbers and certifications provided by the customer on
IRS Forms X-0, X-0XXX, X-0XXX, X-0XXX, W-8ECI, W-9, 1001, or 4224, or any
acceptable substitute) in its possession relating to each customer account
transferred to Pershing and to each future customer account opened. Broker
acknowledges that Pershing will rely on such information for purposes of
determining Pershing's obligation to withhold federal income tax pursuant to
Sections 1441 through 1446 and 3406 of the Internal Revenue Code. Broker
hereby authorizes Pershing to employ any procedures permitted under applicable
law or regulation to achieve compliance with its withholding obligations under
federal income tax law.
15.0 ORDER AUDIT TRAIL SYSTEM (OATS)
Pursuant to NASD Rules 6950 through 6957 (Order Audit Trail System ("OATS")
Rules) and the OATS Reporting Technical Specifications, it is hereby agreed
between Broker and Pershing that Pershing shall synchronize Pershing system
clocks in accordance with the National Institute of Standards and Technology
clock and periodically monitor such clocks for performance within any
deviation time frame tolerance level permitted by the OATS Rules.
Unless otherwise directed in writing by Broker, Pershing will record and
transmit to the NASD, on Broker's behalf, all order information that is
required to be recorded pursuant to the OATS Rules and the OATS Technical
Specifications (including any modifications thereto) (the "Order Information")
for orders entered on or linked to Pershing's proprietary electronic order
entry systems (including Trade Order Processing System, BrokerView Order
Entry, BrokerView Direct Order, NetExchange Pr0TM, NetExchange ClientTM,
Telexchange Pr0TM, and Telexchange ClientTM, and any other electronic order
entry system as Pershing may develop and implement from time to time)
(collectively "the Front-End Products") and routed to a market using
Pershing's routing routine. Pershing will also record and transmit to the NASD
information that is received via the Products by Pershing in connection with
modification or cancellation of any Order Information previously entered into
the system.
Unless specifically agreed to in writing, Pershing will not capture
information or transmit Order Information for orders that are not entered on
the Front-End Products or called in for execution or where Pershing does not
determine the order routing routine.
For trades not entered on Front-End Products, Broker is responsible for
providing information necessary for Pershing to report on Broker's behalf.
Broker agrees that Pershing may pass any out-of-pocket costs associated with
development and/or maintenance of this system on to Broker.
Broker acknowledges and agrees that Pershing shall not be responsible for any
Order Information that is not received by Pershing.
Notwithstanding the foregoing, nothing contained herein shall relieve Broker
of its reporting obligations under paragraph (c)(3) of OATS Rule 6955.
16.0 LIABILITY OF PERSHING
DISCLAIMER OF WARRANTIES. BROKER EXPRESSLY AGREES THAT BROKER'S USE
------------------------
OF PERSHING'S SERVICES, INCLUDING THE SYSTEMS AS DEFINED BY PARAGRAPH
28.1 AND SOFTWARE PRODUCTS AS DEFINED HEREIN, IS AT BROKER'S SOLE RISK.
NEITHER PERSHING NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
CONTRACTORS, AFFILIATES, INFORMATION PROVIDERS, LICENSORS, OR OTHER
SUPPLIERS PROVIDING DATA, INFORMATION, SERVICES OR SOFTWARE, INCLUDING
BUT NOT LIMITED TO THE NYSE, WARRANTS THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR
AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR
CONTENT OF ANY DATA, INFORMATION, SERVICES, OR TRANSACTIONS PROVIDED
AND PERSHING SHALL NOT BE RESPONSIBLE FOR ANY LOSSES LIABILITIES OR
DAMAGES CAUSED BY THE ACTS OR OMISSIONS OF THOSE THIRD PARTY AGENTS,
CONTRACTORS, INFORMATION PROVIDERS OR OTHER SUPPLIERS BEYOND ANY
AMOUNT WHICH PERSHING IS ABLE TO RECOVER PURSUANT TO ITS AGREEMENT
WITH SUCH ENTITY. EXCEPT AS SPECIFICALLY SET FORTH IN THIS PARAGRAPH 16,
PERSHING'S SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS,
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE
IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION
UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
16.1 Pershing Indemnification. In addition to any other obligations it may
------------------------
possess under other provisions of this Agreement, Pershing shall indemnify,
defend, and hold harmless Broker from and against all claims, demands,
proceedings, suits, actions, liabilities, expenses, and reasonable attorney's
fees, and costs in connection therewith arising out of any grossly negligent,
reckless, dishonest, fraudulent, or criminal act or omission on the part of
any of its officers or employees with respect to the services provided by
Pershing under this Agreement.
16.2 Damages. Neither Pershing nor Broker shall be liable for punitive
-------
damages which the other party may incur or experience, whether such damages
are incurred or experienced as a result of entering into, performing or
relying on this Agreement or otherwise, even if such party has been advised of
the possibility of such damages.
16.3 Pershing Right to Compete. Nothing in this Agreement shall be deemed to
-------------------------
restrict in any way the right of Pershing or any affiliate of Pershing to
compete with Broker in any or all aspects of Broker's business.
17.0 LIABILITY OF BROKER
17.1 Broker Indemnification. In addition to any other obligations it may
----------------------
possess under other provisions of this Agreement, Broker shall indemnify, and
hold harmless Pershing, and any controlling person of Pershing, from and
against all claims, demands, proceedings, suits, and actions and all
liabilities, expenses, attorney's fees (including fees and costs incurred in
enforcing Pershing's right to indemnification), and costs in connection
therewith arising out of one or more of Broker's or any of its employee's
negligent, dishonest, fraudulent, or criminal act, or omission or any of the
following:
17.1.1 Failure to Make Payment or Deliver Securities. A check received by
---------------------------------------------
Pershing from a customer shall not constitute payment until it has been paid
and the proceeds are actually received and finally credited to Pershing
(without any subsequent chargeback) by its bank.
17.1.2 Margin Calls. Failure of a customer to meet any initial margin call or
------------
any maintenance call, except that Pershing shall be responsible for the
portion of any such loss or damage that Broker establishes was directly
attributable to Pershing's failure to give notification to Broker as required
in Paragraph 7.3.2 of this Agreement.
17.1.3 Broker's Failure to Perform. Failure of Broker to perform any duty,
---------------------------
obligation, or responsibility with respect to customer accounts as set forth
in this Agreement. Broker's indemnification obligation under this subparagraph
shall not be affected by the participation of Pershing or any person
controlling it or controlled by it within the meaning of the Securities
Exchange Act of 1934, as amended, in any transaction giving rise to such an
obligation, unless such participation constitutes recklessness, fraud, or
criminal conduct.
17.1.4 Improper Conduct by Agents. Any negligent, dishonest, fraudulent, or
--------------------------
criminal act or omission on the part of any of Broker's officers, directors,
employees, or agents.
17.1.5 Failure of a Customer to Perform Obligations. Any failure by any of
--------------------------------------------
Broker's customers to perform any commitment or obligation with respect to a
transaction carried by Pershing under this Agreement, whether or not such
failure was under the control of Broker.
17.1.6 Customer Claims and Disputes. Any claim or dispute between Broker and
----------------------------
a customer with respect to services provided under this Agreement, including,
but not limited to, any claim or dispute concerning the validity of a customer
order in the form the order was transmitted to Pershing by Broker and any
claim arising in connection with Pershing's guarantee of any signature of any
customer of Broker or at the request of Broker.
17.1.7 Warranties. Any adverse claim with respect to any security delivered
----------
or cleared by Pershing, including a claim of a defect in title with respect to
securities that are alleged to have been forged, counterfeited, raised or
otherwise altered, or if they are alleged to have been lost or stolen. The
parties agree that Pershing shall be deemed to be an intermediary between
Broker and customer and shall be deemed to make no warranties other than as
provided in Section 8-306(3) of the Uniform Commercial Code.
17.1.8 Default of Third-Party Broker. Any default by a third-party broker
-----------------------------
with whom the Broker deals on a principal or agency basis in a transaction
either not executed by Pershing or not cleared by Pershing even if permitted
by Pershing as provided herein.
17.1.9 Check Signing. Any negligence, fraud, malfeasance, or error of any
-------------
employee of Broker with respect to the use of the check signing authority
granted under Paragraph 9.1.6 of this Agreement.
17.1.10 Prior Self-Clearing Arrangements. Any guarantee, indemnification, or
--------------------------------
hold harmless agreement in connection with Broker's business or customers that
Pershing may provide to the National Securities Clearing Corporation, the
Depository Trust Company, or any other clearing, depository, or self
regulatory organization with respect to transactions self-cleared by Broker
prior to transfer of such functions to Pershing.
17.1.11 Breach of Warranty by Broker. Any breach by Broker of any
----------------------------
representation or warranty made by it under this Agreement.
17.1.12 Deposit of Checks to Customer Accounts. Any failure to exercise due
--------------------------------------
diligence in reviewing checks received from customers to ensure that same are
in proper form, or in the issuance of instructions to Pershing regarding the
accounts into which checks are to be deposited.
17.1.13 Assets Not Held in Brokerage Account. Any claim asserted against
------------------------------------
Pershing alleging the inaccuracy of any information appearing on Broker's
customer brokerage account statements with respect to assets not held in the
brokerage account, regardless of whether such information was provided by
Broker, customer or a third-party.
17.1.14 Infringement of Intellectual Property Rights. Any act or omission of
--------------------------------------------
Broker, its agents, employees or customers which infringes on any patent,
trade secret, copyright, trademark, or other intellectual property right of
Pershing or any violation of the terms set forth in paragraph 27 hereof.
17.1.15 Misuse of Passwords and Unauthorized Access. The misuse, loss or
-------------------------------------------
unauthorized access to the Systems and Software Products using the
Identification Devices (as that term is defined in Section 28.4 of this
Agreement) provided to Broker or its customers.
17.2 Injunctive Relief. In the event of a breach or threatened breach of any
-----------------
of the provisions of this Agreement by Broker or any employee or
representative of Broker, Broker acknowledges that Pershing shall be entitled
to seek preliminary and permanent injunctive relief to enforce the provisions
hereof. In addition, Broker acknowledges that a breach of the terms regarding
confidentiality of information and ownership of Pershing's intellectual
property would cause irreparable and incalculable damage to Pershing. Nothing
herein shall preclude the parties from pursuing any action or other remedy for
any breach or threatened breach of this Agreement, all of which shall be
cumulative.
17.3 Injunctive Relief. In the event of a breach or threatened breach of any
-----------------
of the provisions of this Agreement by Pershing or any employee or
representative of Pershing, Pershing acknowledges that Broker shall be
entitled to seek preliminary and permanent injunctive relief to enforce the
provisions hereof. In addition, Pershing acknowledges that a breach of the
terms regarding confidentiality of information would cause irreparable and
incalculable damage to Broker. Nothing herein shall preclude the parties from
pursuing any action or other remedy for any breach or threatened breach of
this Agreement, all of which shall be cumulative.
18.0 FEES AND SETTLEMENTS FOR SECURITIES TRANSACTIONS
18.1 Commissions. Pershing shall charge each of Broker's customers the
-----------
commission, markup, and any other charge or expense that Broker instructs it
to charge for each transaction. If instructions are not received with respect
to a transaction in the time period required by Pershing to implement those
instructions, Pershing shall charge the customer the commission, markup, or
other charge or expense prescribed in the basic commission schedule delivered
to Pershing by Broker. This basic schedule may be amended from time to time by
Broker by written instructions delivered to Pershing. Pershing shall only be
required to implement such amendments to the basic schedule to the extent such
amendments are within the usual capabilities of Pershing's data processing and
operations systems and only within such reasonable time limitations as
Pershing may deem necessary to avoid disruption of its normal operating
capabilities.
18.2 Miscellaneous Charges. Broker agrees to pay Pershing the fees and
---------------------
charges described in Schedule A hereto, Notwithstanding the foregoing, Broker
may instruct Pershing to pass through such fees to Broker's customers.
18.3 Fees for Clearing Services. As compensation for services provided
--------------------------
pursuant to this Agreement, Pershing shall deduct from the commissions, xxxx-
up, xxxx-down, or fees charged Broker's customers the amounts set forth in the
fully-disclosed pricing schedule attached hereto as Schedule A.
19.0 DEPOSIT ACCOUNT
19.1 Establishment of Deposit Account. To further assure Broker's performance
--------------------------------
of its obligations under this Agreement, including but not limited to its
indemnification obligations under Paragraph 17, Broker shall, on or before the
execution of this Agreement, establish an account at Pershing to be designated
as the Broker's Deposit Account (the "Deposit Account"). The Deposit Account
shall not represent an ownership interest by Broker in Pershing. The Deposit
Account shall at all times contain cash, securities, or a combination of both,
having a market value of at least the amount set forth in Schedule A. The
securities placed in the Deposit Account shall consist only of direct
obligations issued by or guaranteed as to principal and interest by the United
States Government. In the event of a substantial change in the nature and
extent of Broker's business operations, Pershing may require immediately that
an additional amount be deposited in the Deposit Account. If such a deposit is
not made in the amount specified, whether or not Broker agrees that the amount
is justified under this subparagraph, Pershing may terminate this Agreement
forthwith. The parties agree that Broker's deposit into the Deposit Account
does not represent ownership interest in Pershing by Broker.
19.2 Pershing's Right to Offset. If(i) Pershing shall have any claim against
--------------------------
Broker or a customer of Broker which has not been resolved within five
business days after Pershing presents such claim to Broker; or (ii) if
Pershing shall suffer any loss or incur any expense for which it is entitled
to be indemnified pursuant to this Agreement, and Broker shall fail to make
such indemnification within five business days after being requested to do so,
Pershing may deduct the amount of such claim, loss, or expense from any
account of Broker. Pershing may withdraw cash or securities (or both) having a
market value equal to the amount of such claimed deficiency. If those funds
are withdrawn from the Deposit Account, then Broker shall be obligated to make
an immediate deposit in the Deposit Account of cash or securities sufficient
to bring the Deposit Account back to a value of at least the amount required
by Schedule A.
19.3 Termination of Deposit Account. Upon termination of this Agreement, and
------------------------------
transfer of all customer and proprietary accounts of Broker or as soon
thereafter as practical, but in all cases within thirty (30) days of
termination, Pershing shall pay and deliver to Broker, the funds and
securities in the Deposit Account, less any amounts to which it is entitled
under the preceding paragraph; provided, however, that Pershing may retain in
the Deposit Account such amount for such period as it deems appropriate for
its protection from any claim or proceeding of any type, then pending or
threatened, until the final determination of such claim or proceeding is made.
If a threatened claim or proceeding is not resolved or if a legal action or
proceeding is not instituted within a reasonable time after the termination of
this Agreement, any amount retained with respect to such claim, proceeding, or
action shall be paid or delivered to Broker.
20.0 PROPRIETARY ACCOUNTS OF INTRODUCING BROKERS AND DEALERS (PAIB)
Pershing shall establish a separate reserve account for proprietary
assets held by Broker so that Broker can treat these assets as allowable
assets under SEC Rule l5c3-x. Xxxxxxxx agrees to perform the required
computation on behalf of Broker in accordance with the following provisions,
procedures, and interpretations set forth in the SEC's No-Action Letter
regarding Proprietary Accounts of Introducing Brokers and Dealers (PAIB) dated
November 3, 1998:
20.1 Pershing will perform a separate computation for PAIB assets (PAIB
reserve computation) of Broker in accordance with the customer reserve
computation set forth in SEC Rule l5c3-3 (customer reserve formula) with the
following modifications:
A. Any credit (including a credit applied to reduce a debit) that
is included in the customer reserve formula will not be included
as a credit in the PAIB reserve computation;
B. Note E(3) to Rule 15c3-3a, which reduces debit balances by one
percent under the basic method and subparagraph (a)(1)(ii)(A) of
Rule 15c3-1, which reduces debit balances by three percent under
the alternative method will not apply; and
C. Neither Note E(I) to Rule 1 5c3-3a nor NYSE Interpretation /04
to Item 10 of Rule 1 5c3-3a regarding securities concentration
charges is applicable to the PAIB reserve computation.
20.2 PAIB reserve computation will include all the proprietary accounts of
Broker. All PAIB assets will be kept separate and distinct from customer
assets under the customer reserve computation set forth in SEC Rule 15c3-3.
20.3 PAIB reserve computation will be prepared within the same time frames as
those prescribed by Rule 15c3-3 for the customer reserve formula.
20.4 Pershing will establish and maintain a separate "Special Reserve Account
for the Exclusive Benefit of PAIB Customers" with a bank in conformity with
the standards of Rule 15c3-3(f) (PAIB Reserve Account). Cash and/or qualified
securities as defined in the Rule will be maintained in the PAIB Reserve
Account in an amount equal to the PAIB reserve requirement.
20.5 If the PAIB reserve computation results in a deposit requirement, the
requirement can be satisfied to the extent of any excess debit in the customer
reserve formula of the same date. However, a deposit requirement resulting
from the customer reserve formula cannot be satisfied with excess debits from
the PAIB reserve computation.
20.6 Within two business days of entering into this Agreement, Broker must
notify its designated examining authority (DEA) in writing that it has entered
into a PAIB agreement with its clearing broker-dealer.
20.7 Upon discovery that any deposit made to the PAIB Reserve Account did not
satisfy its deposit requirement, Pershing will immediately notify its DEA and
the SEC. Unless a corrective plan is found to be acceptable by the SEC and the
DEA, Pershing will provide written notification within five business days of
the date of discovery to Broker that PAIB assets held by Pershing will not be
deemed allowable assets for net capital purposes.
21.0 COMMUNICATION
21.1 Notice to Customers. Pershing shall, upon the opening of an account
-------------------
pursuant to paragraph 5 of this Agreement, mail to each customer a copy of the
notice to customers required by NYSE Rule 3 82(c).
21.2 Customer Complaint Reporting and Customer Notification. Broker
------------------------------------------------------
authorizes and instructs Pershing to forward promptly any written customer
complaint received by Pershing regarding Broker and/or its associated persons
relating to functions and responsibilities allocated to Broker under this
Agreement to a) Broker and b) Broker's designated examining authority ("DEA")
designated under Section 17 of the Securities and Exchange Act of 1933 or, if
none, to Broker's appropriate regulatory agency or authority. Further, Broker
authorizes Pershing to notify the customer, in writing, that Pershing has
received the complaint, and the complaint has been forwarded to Broker's DEA
(or, if none, to the appropriate regulatory agency).
21.3 Restriction on Advertising. Neither Pershing nor Broker shall utilize
--------------------------
the name of the other in any way without the other's prior written consent
except to disclose the relationship between the parties. Neither party shall
employ the other's name in such a manner as to create the impression that the
relationship between them is anything other than that of clearing broker and
introducing broker. Broker shall not hold itself out as an agent of Pershing
or as a subsidiary or company controlled directly or indirectly by or
affiliated with Pershing except as provided in this paragraph.
21.4 Linking Between Sites. Without express written authorization, neither
---------------------
party may provide or allow an electronic hyperlink directly from its service
or site on the Internet or another site over which that party has control to
the service or site on the Internet of the other party.
22.0 TERMINATION OF AGREEMENT
This Agreement shall continue until terminated as hereinafter provided:
22.1 Termination Upon 90-Day Notice. This Agreement may be terminated by
------------------------------
either party without cause upon ninety days prior notice. If either party
terminates the Agreement pursuant to this subparagraph, Pershing shall have
the right to impose reasonable limitations upon Broker's activities during the
period between the giving of Notice and the transfer of Broker's accounts.
22.2 Default. If either party defaults in the performance of its obligations
-------
under this Agreement, or otherwise violates the provisions of this Agreement,
the no defaulting party may terminate this Agreement by delivering Notice to
the defaulting party (i) specifying the nature of the default; and (ii)
notifying the defaulting party that unless the default is cured within a
period of ten days from receipt of the Notice, this Agreement will be
terminated without further proceedings by the no defaulting party.
22.3 Disability. This Agreement may be terminated by Pershing or Broker
----------
immediately in the event that the other party is enjoined, disabled,
suspended, prohibited, or otherwise becomes unable to engage in the securities
business or any part of it by operation of law or as a result of any
administrative or judicial proceeding or action by the SEC, any state
securities law administrator, or any regulatory or self-regulatory
organization having jurisdiction over such party.
22.4 Conversion of Accounts. In the event that this Agreement is terminated
----------------------
for any reason, Broker shall arrange for the conversion of Broker's and its
customer accounts to another clearing broker or to Broker if it becomes self-
clearing. Broker shall give Pershing Notice (the "Conversion Notice") of: (i)
the name of the broker that will assume responsibility for clearing services
for Customers and Broker; (ii) the date on which such broker will commence
providing such services; (iii) Broker's undertaking, in form and substance
satisfactory to Pershing, that Broker's agreement with such clearing broker
provides that such clearing broker will accept on conversion all Broker and
customer accounts then maintained by Pershing; and (iv) the name of an
individual or individuals within new clearing broker's organization whom
Pershing may contact to coordinate the conversion. The Conversion Notice shall
accompany Broker's notice of termination given pursuant to this paragraph. If
Broker fails to give Conversion Notice to Pershing, Pershing may notify
Broker's customers as Pershing deems appropriate of the termination of this
Agreement and may make such arrangements as Pershing deems appropriate for
transfer or delivery of customer and Broker accounts. The expense of notifying
those customers and making such arrangements shall be charged to Broker.
22.5 Survival. Termination of this Agreement in any manner shall not release
--------
Broker or Pershing from any liability or responsibility with respect to any
representation or warranty or transaction effected on the books of Pershing.
22.6 Termination Fee. If Broker terminates this Agreement pursuant to
---------------
Paragraph 22.1 or above, or Pershing terminates this Agreement pursuant to
Paragraph 22.2 or 22.3 above within the period specified in Schedule A, Broker
shall pay to Pershing a termination fee as stated in Schedule A.
23.0 CONFIDENTIAL NATURE OF DOCUMENTS AND OTHER INFORMATION
Neither Pershing nor Broker shall disclose the terms of this
Agreement or information obtained as a result thereof or information regarding
the identity of the other's customers to any outside party except to
regulatory or self-regulatory organizations, pursuant to judicial process or
as otherwise required by law or to authorized employees of the other. Any
other publication or disclosure of the terms of this Agreement may be made
only with the prior written consent of the other party. Broker and Pershing
shall each maintain the confidentiality of documents and information received
from the other party pursuant to this Agreement.
Broker acknowledges that the services Pershing provides hereunder
involve Broker access to proprietary technology, trading and other systems,
and that techniques, algorithms and processes contained in such systems
constitute trade secrets and shall be safeguarded by Broker, and that Broker
shall exercise reasonable care to protect Pershing's interest in such trade
secrets. Broker agrees to make the proprietary nature of such systems known to
those of its consultants, staff, agents or clients who may reasonably be
expected to come into contact with such systems. Broker agrees that any breach
of this confidentiality provision may result in its being liable for damages
as provided by law.
24.0 ACTION AGAINST CUSTOMERS BY XXXXXXXX
Xxxxxxxx may, in its sole discretion and at its own expense and,
upon written notice to Broker, institute and prosecute in its name any action
or proceeding against any of Broker's customers in relation to any controversy
or claim arising out of Pershing's transactions with Broker or with Broker's
customers. Nothing contained in this Agreement shall be deemed either (a) to
require Pershing to institute or prosecute such an action or proceeding; or
(b) to impair or prejudice its right to do so, should it so elect, nor shall
the institution or prosecution of any such action or proceeding relieve Broker
of any liability or responsibility which Broker would otherwise have had under
this Agreement. Broker assigns to Pershing its rights against its customer as
necessary to effectuate the provisions of this paragraph.
25.0 NOTICES
Any Notice required or permitted to be given under this Agreement
shall be sufficient only if it is in writing and sent by hand or by certified
mail, return receipt requested, to the parties at the following address:
Broker: X.X. Xxxxxxx & Company
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxx
Xxxxxxxx:
Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation
0000 X. 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
cc: Legal Department
26.0 ARBITRATION
26.1 Arbitration Requirement. Any dispute between Broker and Pershing that
-----------------------
cannot be settled shall be taken to arbitration as set forth in paragraph 26.3
below.
26.2 ARBITRATION DISCLOSURE.
----------------------
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN
COURT, INCLUDING TUE RIGHT TO JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN
AND DIFFERENT FROM COURT PROCEEDINGS.
o THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR
TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY
LIMITED.
o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
26.3 ARBITRATION AGREEMENT.
---------------------
ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS OR THIS
AGREEMENT SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE
NEW YORK STOCK EXCHANGE, INC., OR NASD REGULATION INC., AND IN
ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION
AND SHALL BE CONDUCTED AS A BROKER TO BROKER OR MEMBER VS MEMBER
DISPUTE. ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER
PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF
INTENTION TO ARBITRATE, THEREIN ELECTING THE ARBITRATION TRIBUNAL.
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 AND WHO IS A MEMBER OF A PUTATIVE CLASS AND 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.
27.0 GENERAL PROVISIONS
27.1 Successors and Assigns. This Agreement shall be binding upon and shall
----------------------
inure to the benefit of the respective successors and assigns of Broker and
Pershing. No assignment of this Agreement or any rights, including those to
indemnification hereunder by Broker shall be effective unless Pershing's
written consent shall be first obtained.
27.2 Severability. If any provision of this Agreement shall be held to be
------------
invalid or unenforceable, the validity or enforceability of the remaining
provisions and conditions shall not be affected thereby.
27.3 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which taken together shall constitute a single agreement.
27.4 Entire Agreement Amendments and Duties Not Specifically Enumerated
------------------------------------------------------------------
Herein. This Agreement represents the entire agreement between the
------
parties with respect to the subject matter contained herein and all prior
discussions, agreements, and promises, written or oral, are merged herein.
This Agreement may not be changed orally, but only by an agreement in writing
signed by the parties. Pershing shall not be responsible or liable for failure
to perform any duties not specifically enumerated herein.
27.5 Captions. Captions herein are for convenience only and are not of
--------
substantive effect.
27.6 App1icab1e Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws of the State of New York, without giving
effect to the conflicts of laws or principles thereof. This Agreement shall
not be governed by the United Nations Convention on the International Sale of
Goods.
27.7 Citations. Any reference to the rules or regulations of the SEC, NASD,
---------
the NYSE, or any other regulatory or self-regulatory organization are current
citations. Any changes in the citations (whether or not there are any changes
in the text of such rules or regulations) shall be automatically incorporated
herein.
27.8 Construction of Agreement. Neither this Agreement nor the performance of
-------------------------
the services hereunder shall be considered to create a joint venture or
partnership between Pershing and Broker or between Broker and other brokers
for whom Pershing may perform the same or similar services.
27.9 Third-Parties. This Agreement is between the parties hereto and is not
-------------
intended to confer any benefits on third-parties including, but not limited
to, customers of Broker.
27.10 Non-Exclusivity of Remedies. The enumeration herein of specific
---------------------------
remedies shall not be exclusive of any other remedies. Any delay or failure by
a party to this Agreement to exercise any right, power, remedy, or privilege
herein contained, or now or hereafter existing under any applicable statute or
law, shall not be construed to be a waiver of such right, power, remedy, or
privilege. No single, partial, or other exercise of any such right, power,
remedy, or privilege shall preclude the further exercise thereof or the
exercise of any other right, power, remedy, or privilege.
27.11 SEC Release 34-31511 Provision. Pursuant to the interpretation of
------------------------------
Introducing Accounts on a Fully-Disclosed Basis contained in SEC Release 34-
31511, it is hereby agreed between Broker and Pershing that, insofar as the
"financial responsibility rules" of the SEC and Securities Investor Protection
Act only are applicable, the accounts Broker introduces to Pershing on a
fully-disclosed basis shall be considered to be accounts of Pershing and not
Broker's accounts. Nothing in this paragraph will otherwise change or affect
the provisions of this Agreement which provide that the customer account
remains Broker's customer account for all other purposes, including but not
limited to, supervision, suitability and indemnification.
27.12 United States Postal Service Documents. Broker hereby appoints Pershing
--------------------------------------
as its attorney-in-fact for the purpose of executing such documents as are
necessary to allow Broker and its customers to participate in the FASTforward
program of the United States Postal Service. This may include, but not be
limited to Pershing's execution, on an annual basis, on Broker' behalf, of the
FASTforward Processing Acknowledgment Form.
27.13 Provision of Reports and Exception Reports. On or before the effective
------------------------------------------
date of this Agreement, Pershing shall provide to Broker, Pursuant to NYSE
Rule 382(e), a list of all reports (e.g. exception-type reports) it offers to
Broker. Broker shall promptly notify Pershing, in writing, of those specific
reports it elects to receive. Pershing and Broker each represent that their
obligations relative to exception reports, pursuant to NYSE Rule 3 82(e) have
been completed. (NYSE Information Memo 99-33)
28.0 OWNERSHIP AND LICENSES
28.1 License to Use Systems. In order to effectuate the terms of this
----------------------
Agreement and to allow each party to perform its duties hereunder, Pershing
hereby grants to Broker a non-exclusive, non-transferable, non-assignable
limited license for the term of this Agreement to access and use the various
account information, trading and order entry systems to which Pershing
specifically provides access whether pursuant to the schedules attached hereto
or otherwise ("the Systems"). Said license shall be limited to the use of the
most recently updated version of Systems in accordance with the written
manuals and procedures provided by Pershing in effect from time to time.
Broker shall not, directly or indirectly, modify the features or functionality
of, copy or create derivative works using all or any portion of, peel
semiconductor components, decompile, or otherwise reverse engineer or attempt
to reverse engineer or derive source code from the Systems or permit or
encourage any third-party to do so.
28.2 License to Software Products. Subject to receipt by Pershing of the fees
----------------------------
set forth in the pricing schedules attached hereto and approval by Pershing of
any customized version created by Broker, pursuant to a request by a Pershing
officer holding the title of Senior Vice President or any more senior title,
Pershing may provide or arrange for the provision of software and other
associated and non-associated services, features of which may enable Broker's
customers or its representatives to contact Broker and transact business
through Broker via various media, including a site or pages of a site located
on the World Wide Web and reached through an Internet address, which shall be
unique to Broker (but which shall not be required to be a domain name unique
to Broker) (the "Software Products"). To the extent required, Pershing hereby
grants to Broker a non-exclusive, non-transferable, non-assignable limited
license for the term of this Agreement to access and use the Software Products
solely for the purposes for which they were created and provided to Broker: to
enable its customers and representatives (a) to communicate with Broker; and
(b) access financial information and transact business with Broker through the
various media. Said license shall be limited to the use of the most recently
updated version of the Software Products in accordance with the written
manuals and procedures provided by Pershing in effect from time to time.
Except as specifically permitted pursuant to the first sentence of this
Paragraph 28.2, Broker shall not, directly or indirectly, modify the features
or functionality of, copy or create derivative works using all or any portion
of, peel semiconductor components, decompile, or otherwise reverse engineer or
attempt to reverse engineer or derive source code from the Software Products
or permit or encourage any third-party to do so.
28.3 Ownership of the Systems and Software Products. Nothing herein shall be
----------------------------------------------
construed to transfer to Broker any rights, title and/or interest in and to
the Systems or to the Software Products, including without limitation, the
intellectual property rights therein. The Systems and Software Products are
considered the trade secrets of Pershing and its affiliates. As between Broker
and Pershing, Pershing shall at all times be and remain the sole and exclusive
owner of the Systems and Software Products, including any and all home page
design(s), methodologies, techniques, software libraries, and know-how used by
Pershing or incorporated into the Systems and Software Products, including all
improvements, modifications, or enhancements thereto. Except with respect to
intellectual property rights in trademarks and copyrights belonging to Broker,
Pershing and its affiliates retains all rights, title, and interest in and to
Systems and Software Products, including without limitation, all applicable
copyrights (including without limitation, the exclusive right to reproduce,
distribute copies of, display and perform the copyrighted work and to prepare
derivative works), copyright registrations, and applications, trademark rights
(including without limitation, registrations and applications), patent rights,
trade names, mask-work rights, trade secrets, moral rights, authors' rights,
and all renewal and extensions thereof, regardless of whether any of such
rights arise under the laws of the United States or any other state, country
or jurisdiction. If at any time Broker proposes or makes modifications to its
customized version of any System or Software Product ("Modification"), all
right, title and interest in the Modifications shall be deemed to be a work
made for hire. To the extent that title to any such Modification may not vest
in Pershing by operation of law, or such Modifications may not be considered
works made for hire, all right, title, and interest to therein are hereby
irrevocably assigned to Pershing. All such Modifications shall belong
exclusively to Pershing, with Pershing having the right to obtain and to hold
in its own name copyright registrations, patents, and such other intellectual
property protection as may be appropriate to the subject matter, and any
extensions and renewals thereof. Broker agrees to give Pershing and any person
designated by Pershing reasonable assistance, at Pershing's expense, required
to perfect the rights defined in this Section. Unless otherwise directed by
Pershing, upon the termination of this Agreement, Broker shall immediately
turn over to Pershing all Modifications, including, but not limited to,
computer programs, working papers, descriptions, reports, and data. Nothing
contained in this Paragraph 28.3 shall be construed as preventing Pershing
from assigning any intellectual property right with respect to any
Modification to any third-party. This Paragraph 28.3 shall survive any
termination of this Agreement.
28.4 Protection of the Systems and Software Products. Pershing shall, from
-----------------------------------------------
time to time, provide Broker with passwords, codes, certificates, and other
identification devices and security measures (the "Identification Devices")
necessary to access and use the Systems and Software Products. Broker shall
determine whether and which of its customers, employees, or agents shall have
access to the Systems and Software Products. Broker shall be solely
responsible for the assignment, distribution, and maintenance of all
Identification Devices to ensure that access to the Systems and Software
Products is granted only to those individuals who are authorized by Broker.
Nothing in this paragraph shall affect or diminish Pershing's right, in its
sole discretion, to refuse to provide any or all the Systems and Software
Products to Broker, its agents or employees or any customers of Broker. Broker
shall be responsible for and shall provide the same level of security as
Broker applies to its own source code and trade secrets in the protection,
maintenance, and distribution of those Identification Devices and codes within
its organization and to its agents and customers, but in no case less than
reasonable security. Any loss, theft, or discovery of any Identification
Devices shall be reported to Pershing immediately and Broker shall be
responsible for any unauthorized use, and for any loss resulting from
unauthorized use, of any Identification Device prior to the time the loss,
theft, or discovery of the Identification Device is reported to Pershing.
28.5 Restricted Use of Data. Broker acknowledges that certain information
----------------------
available via the Systems and Software Products cannot be viewed by or
otherwise distributed to an individual who is a member of any exchange or the
NASD, or of any corporation of which an exchange owns a majority of the
capital stock, or of a member firm or member corporation of any exchange or
the NASD or of any corporation, firm or individual engaged in the business of
dealing either as a broker or a principal in securities, bills of exchange,
acceptances, or other forms of commercial paper (hereinafter "Professional
User"). Broker acknowledges that Broker is solely responsible for ensuring
that and represents and warrants that it will not use or permit any other
Professional User to access or view the restricted information except in their
capacity as public customers. In addition, certain information available
through the Systems cannot be viewed by or otherwise distributed to Broker's
customers. Broker acknowledges that Broker is solely responsible for ensuring
that no such individual views the restricted information. Pershing's or its
affiliates' mere creation and license of the Systems and Software Products to
be used by Broker as tools for conducting its business does not diminish
Broker's responsibility for compliance with all applicable rules as set forth
in paragraph 6 of this Agreement.
28.6 Options Price Reporting Authority Requirements. In providing the Systems
----------------------------------------------
and Software Products, Broker may allow access to information concerning
options contracts to its customers or itself, which information has been
licensed to Pershing. Broker hereby certifies that, for each customer to whom
it instructs Pershing to provide access to information concerning options
contracts, it has obtained a written agreement in which the customer agrees
that he or she: (1) shall receive options information solely for such person's
own use; (2) shall not retransmit or otherwise furnish options information to
any other person; (3) shall acknowledge that options information is and shall
remain the property of the respective exchange or other market on which a
reported transaction took place or a reported quotation was entered; and (4)
shall acknowledge that; (i) neither the Options Price Reporting Authority
(OPRA), OPRA's processor, nor any OPRA Participant guarantees the timeliness,
sequence, accuracy, or completeness of any options last sale price, quotation
information, or other market information provided by OPRA; (ii) neither OPRA,
OPRA's processor nor any OPRA Participant shall be liable in any way to such
customer, broker or any other person for any loss, damages, cost, or expense
which may arise from any failure of performance by OPRA, OPRA's processor, or
any OPRA Participant, or from any delays, inaccuracies, errors in or omissions
of, any Options Information, or in the transmission or delivery thereof,
whether or not due to any negligent act or omission on the part of OPRA,
OPRA's processor or any OPRA Participant; and (iii) in no event shall OPRA,
OPRA's processor or any OPRA Participant be liable for any incidental,
special, indirect, or consequential damages, including but not limited to,
lost profits, trading losses, or damages resulting from inconvenience, or loss
of use of the Service. Such written agreement shall state that it is for the
express benefit of OPRA, OPRA' s processor, and each OPRA Participant. In
addition, Broker, on its own behalf, acknowledges its understanding of OPRA's
responsibilities under this Paragraph 28.6. In addition, Broker agrees that it
shall maintain and preserve for at least three years sufficient records to
identify the names and addresses of its customers to whom it is authorized to
provide the Service, together with copies of all customer agreements and
billing records. At the request of OPRA, Broker agrees to permit
representatives of OPRA to have access to such records, and to provide to OPRA
any information that OPRA may reasonably request concerning its customers.
Broker further acknowledges that its acknowledgments and agreements as stated
above should are for the express benefit of OPRA, OPRA' s processor, and each
OPRA participant.
28.7 Receipt of Information from Third-Parties and Reality Online Inc. In
----------------------------------------------------------------
providing the Systems and Software Products, Broker may allow access to
information to its customers or itself, which information has been licensed to
Pershing by a third-party, including without limitation Reality Online Inc.
Broker acknowledges that it has read and executed the agreement attached
hereto as Exhibit A - Reuters Services - Netexchange ClientTM Agreement and
thereby has the right to distribute the information provided by Reality Online
Inc.
IN WITNESS WHEREOF the parties have hereto affixed their hands and seals by
their duly authorized officers on the day and date first above written.
This Agreement contains a pre-dispute arbitration clause in
Paragraph 26 beginning on page 20. Broker acknowledges receiving a copy of
this Agreement.
BROKER: X.X. Xxxxxxx & Company
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
Title: Senior Managing Director
PERSHING DIVISION OF XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Title: Senior Vice President
