EXHIBIT A
Broadcort Capital Corp. CUSTOMER AGREEMENT
In consideration of your accepting and carrying one or more accounts for the
undersigned, the undersigned here by consents and agrees that:
APPLICABLE RULES AND REGULATIONS
1. All transactions shall be subject to the constitution, rules, regulations,
customs and usages of the exchange or market and its clearing house, if any, on
which such transactions are executed by you (Broadcort Capital Corp.) or your
agents, including your subsidiaries and affiliates.
DEFINITION
2. For purposes of this agreement, "securities and other property" shall
include, but not be limited to, money, securities, financial instruments and
commodities of every kind and nature, and all contracts and options relating
thereto, whether for present or future delivery.
MARGIN REQUIREMENTS AND CREDIT CHARGES
3. The undersigned will maintain such securities and other property in the
accounts of the undersigned for margin purposes as you shall require from time
to time; and the monthly debit balance of such accounts shall be charged, in
accordance with your usual custom, with interest at a rate permitted by the laws
of the State of New York. It is understood that the interest charge made to the
undersigned's account at the close of a charge period will, unless paid, be
added to the opening balance for the next charge period and that interest will
be charged upon such opening balance, including all interest so added.
SECURITY INTEREST
4. All securities and other property now or hereafter held, carried or
maintained by you or by any of your affiliates in your possession or control, or
in the possession or control of any such affiliate, for any purpose, in or for
any account of the undersigned now or hereafter opened, including any account in
which the undersigned may have an interest, shall be subject to a lien for the
discharge of all the indebtedness and other obligations of the undersigned to
you, and are to be held by you as security for the payment of any liability or
indebtedness of the undersigned to you in any of said accounts. You shall have
the right to transfer securities and other property so held by you from or to
any other of the accounts of the undersigned whenever in your judgment you
consider such a transfer necessary for your protection. In enforcing your lien,
you shall have the discretion to determine which securities and property are to
be sold and which contracts are to be closed.
REPRESENTATION AS TO BENEFICIAL OWNERSHIP AND CONTROL
5. The undersigned represents that, with respect to securities against which
margin credit is or may be extended by you: (a) the undersigned is not the
beneficial owner of more than three percent (3%) of the number of outstanding
shares of any class of equity securities, and (b) does not control, is not
controlled by and is not under common control with, the issuer of any such
securities. In the event that any of the foregoing representations is inaccurate
or becomes inaccurate, the undersigned will promptly so advise you in writing.
CALLS FOR ADDITIONAL COLLATERAL- LIQUIDATION RIGHTS
6. (a) You shall have the right to require additional collateral:
(1) in accordance with your general policies regarding your margin maintenance
requirements, as such may be modified, amended or supplemented from time to
time; or (2) if in your discretion you consider it necessary for your protection
at an earlier or later point in time than called for by said general policies;
or
(3) in the event that a petition in bankruptcy or for appointment of a receiver
is filed by or against the undersigned; or (4) if an attachment is levied
against the accounts of the undersigned; or (5) in the event of the death of the
undersigned.
(b) IF THE UNDERSIGNED DOES NOT PROVIDE YOU WITH ADDITIONAL COLLATERAL AS
YOU MAY REQUIRE IN ACCORDANCE WITH (A) (1) OR (2), OR SHOULD AN EVENT
DESCRIBED IN (A) (3), (4) OR (5) OCCUR,
(WHETHER OR NOT YOU ELECT TO REQUIRE ADDITIONAL COLLATERAL), YOU SHALL HAVE THE
RIGHT:
(1) TO SELL ANY OR ALL SECURITIES AND OTHER PROPERTY IN THE ACCOUNTS OF THE
UNDERSIGNED WITH YOU OR WITH ANY OF YOUR AFFILIATES, WHETHER CARRIED
INDIVIDUALLY OR JOINTLY WITH OTHERS;
(2) TO BUY ANY OR ALL SECURITIES AND OTHER PROPERTY WHICH MAY BE SHORT IN SUCH
ACCOUNTS; AND
(3) TO CANCEL ANY OPEN ORDERS AND TO CLOSE ANY OR ALL OUTSTANDING CONTRACTS.
YOU MAY EXERCISE ANY OR ALL OF YOUR RIGHTS UNDER (B) (1), (2) AND (3) WITHOUT
FURTHER DEMAND FOR ADDITIONAL COLLATERAL, OR NOTICE OF SALE OR PURCHASE, OR
OTHER NOTICE OR ADVERTISEMENT. ANY SUCH SALES OR PURCHASE MAY BE MADE AT YOUR
DISCRETION ON ANY EXCHANGE OR OTHER MARKET WHERE SUCH BUSINESS IS USUALLY
TRANSACTED, OR AT PUBLIC AUCTION OR PRIVATE SALE; AND YOU MAY BE THE PURCHASER
FOR YOUR OWN ACCOUNT. IT IS UNDERSTOOD THAT YOUR GIVING OF ANY PRIOR DEMAND OR
CALL OR PRIOR NOTICE OF THE TIME AND PLACE OF SUCH SALE OR PURCHASE SHALL NOT BE
CONSIDERED A WAIVER OF YOUR RIGHT TO SELL OR BUY WITHOUT ANY SUCH DEMAND, CALL
OR NOTICE AS HEREIN PROVIDED.
PAYMENT OF INDEBTEDNESS UPON DEMAND
7. The undersigned shall at all times be liable for the payment upon demand of
any debit balance or other obligations owing in any of the accounts of the
undersigned with you, and the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and the undersigned
shall make payment of such obligations and indebtedness upon demand.
LIABILITY FOR COSTS OF COLLECTION
8. To the extent permitted by the laws of the State of New York, the reasonable
costs and expenses of collection of the debit balance and any unpaid deficiency
in the accounts of the undersigned with you, including but not limited to
attorneys' fees incurred and payable or paid by you, shall be payable to you by
the undersigned.
PLEDGE OF SECURITIES AND OTHER PROPERTY
9. All securities and other property now or hereafter held, carried or
maintained by you in your possession or control in any of the accounts of the
undersigned may be pledged and repledged by you from time to time, without
notice to the undersigned, either separately or in common with other such
securities and other property, for any amount due in the accounts of the
undersigned, or for any greater amount, and you may do so without retaining in
your possession or under your control for delivery a like amount of similar
securities or other property.
LENDING AGREEMENT
10. Within the limitations imposed by applicable laws, rules and regulations,
you are hereby authorized to lend to yourselves, as principal or otherwise, or
to others, any securities held by you on margin for any accounts of the
undersigned or as collateral therefor, either separately or with other
securities. It is recognized that any losses or other detriments, or gains or
other benefits, arising from any such lending of securities shall not accrue to
the account of the undersigned.
PRESUMPTION OF RECEIPT OF COMMUNICATIONS
11. Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing. All communications so sent, whether by mail, telegraph, messenger or
otherwise, shall be deemed given to the undersigned personally, whether actually
received or not.
ACCOUNTS CARRIED AS CLEARING BROKER
12. If you are carrying the account of the undersigned as clearing broker by
arrangement with
another broker through whose courtesy the account of the undersigned has been
introduced to you, then until receipt from the undersigned of written notice to
the contrary, you may accept from such other broker, without inquiry or
investigation by you (a) orders for the purchase or sale in said account of
securities and other property on margin or otherwise, and (b) any other
instructions concerning said account. You shall not be responsible or liable for
any acts or omissions of such other broker or its employees.
JOINT AND SEVERAL LIABILITY
13. If the undersigned shall consist of more than one person, their obligations
under this agreement shall be joint and several.
REPRESENTATION AS TO CAPACITY TO ENTER INTO AGREEMENT
14. The undersigned represents that no one except the undersigned has an
interest in the account or accounts of the undersigned with you. If a natural
person, the undersigned represents that the undersigned is of full age, is not
an employee of any exchange, nor of any corporation of which any exchange owns a
majority of the capital stock, nor of a member of any exchange, nor of a member
firm or member corporation registered on any exchange, nor of a bank, trust
company, insurance company or any corporation, firm or individual engaged in the
business of dealing either as broker or as principal in securities, bills of
exchange, acceptances or other forms of commercial paper. If any of the
foregoing representations is inaccurate or becomes inaccurate, the undersigned
will promptly so advise you in writing.
EXTRAORDINARY EVENTS
15. You 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 beyond your control.
THE LAWS OF THE STATE OF NEW YORK GOVERN
16. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ITS CHOICE OF LAW OR CONFLICTS OF LAW PRINCIPLES;
SHALL COVER INDIVIDUALLY AND COLLECTIVELY ALL ACCOUNTS WHICH THE UNDERSIGNED MAY
OPEN OR REOPEN WITH YOU; OR WHICH MAY BE INTRODUCED TO YOU, INCLUDING YOUR
SUBSIDIARIES AND AFFILIATES, THROUGH THE COURTESY OF THE AFOREMENTIONED
INTRODUCING FIRM; SHALL INURE TO THE BENEFIT OF YOUR AFFILIATES AND YOUR
SUCCESSORS, AND THOSE OF THE AFOREMENTIONED INTRODUCING FIRM, WHETHER BY MERGER,
CONSOLIDATION OR OTHERWISE, AND ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES AND
AGENTS; YOU MAY TRANSFER THE ACCOUNTS OF THE UNDERSIGNED TO YOUR SUCCESSORS AND
ASSIGNS AND THOSE OF THE AFOREMENTIONED INTRODUCING FIRM; AND THIS AGREEMENT
SHALL BE BINDING UPON THE HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND
ASSIGNS OF THE UNDERSIGNED.
AMENDMENTS
17. The undersigned agrees that you shall have the right to amend this
Agreement, by modifying or rescinding any of its existing provisions or by
adding any new provision. Any such amendment shall be effective as of a date to
be established by you, which shall not be earlier than thirty days after you
send notification of any such amendment to the undersigned.
SEPARABILITY
18. If any provision or condition of this agreement shall be held to be invalid
or unenforceable by any court, or regulatory or self-regulatory agency or body,
such invalidity or unenforceability shall attach only to such provision or
condition. The validity of the remaining provisions and conditions shall not be
affected thereby and this agreement shall be carried out as if any such invalid
or unenforceable provision or condition were not contained herein.
HEADINGS ARE DESCRIPTION
19. The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
AGREEMENT TO ARBITRATE CONTROVERSIES
20. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEDURES.
* THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDING OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION
OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED.
* THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
THE UNDERSIGNED AGREE(S) THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN US, OR
BETWEEN ME AND THE ORGANIZATION THAT HAS INTRODUCED MY ACCOUNT CARRIED BY YOU,
INCLUDING BUT NOT LIMITED TO THOSE INVOLVING ANY TRANSACTION OR THE
CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN US,
WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE
DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
CONDUCTED ONLY BEFORE THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN STOCK
EXCHANGE, INC., OR ARBITRATION FACILITY PROVIDED BY ANY OTHER EXCHANGE OR THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC OR THE MUNICIPAL SECURITIES
RULEMAKING BOARD, AND IN ACCORDANCE WITH ITS ARBITRATION RULES THEN IN FORCE.
THE UNDERSIGNED MAY ELECT IN THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE
CONDUCTED BEFORE THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE,
INC., OTHER EXCHANGES, OR THE NATIONAL ASSOCIATION ASSOCIATION OF SECURITIES
DEALERS, INC. OR THE MUNICIPAL SECURITIES RULEMAKING BOARD, BUT IF THE
UNDERSIGNED FAIL(S) TO MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM
ADDRESSED TO YOU AT THE OFFICE WHERE THE UNDERSIGNED MAINTAIN(S) MY ACCOUNT,
BEFORE THE EXPIRATION OF FIVE DAYS AFTER RECEIPT OF A WRITTEN REQUEST FPOM YOU
TO MAKE SUCH ELECTION, THEN YOU MAY MAKE SUCH ELECTION. JUDGEMENT UPON THE AWARD
OF ARBITRATORS MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING
JURISDICTION.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A MEMBER OF A PUTATIVE
CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED
BY THE PUTATIVE CLASS ACT10N UNTIL:
i. THE CLASS CERTIFICATION IS DENIED; OR
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.
BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGE (1) THAT, IN ACCORDANCE
WITH PARAGRAPH 20, THE UNDERSIGNED AGREE IN ADVANCE TO ARBITRATE ANY
CONTROVERSIES WHICH MAY ARISE WITH BROADCORT CAPITAL CORP., OR BETWEEN ME/US AND
THE ORGANIZATION THAT HAS INTRODUCED THE UNDERSIGNED ACCOUNT CARRIED BY YOU AND,
(2) THAT, PURSUANT TO XXXXXXXXX 00 XXXXX, XXXXXXX OF MY/OUR SECURITIES MAY BE
LOANED TO YOU OR LOANED OUT TO OTHERS, AND (3) RECEIPT OF A COPY OF THIS
AGREEMENT.
SIGNATURES
CORPORATION/PARTNERSHIP/TRUST INDIVIDUALS
__________________________ _______________________
(SIGNATURE OF CORPORATION, PARTNERSHIP OR TRUSTEE(S)
BY ______________________
TITLE ____________________ ___________________________
(SECOND PARTY, IF JOINT ACCT)
ATTEST ___________________
CORPORATE SEAL (IF APPLICABLE)
DATED ____________________ ACCOUNT NO.______________
NOTE: FOR PARTNERSHIPS, ALL GENERAL PARTNERS MUST SIGN
