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Exhibit (a)
XXXXXXXXXX SECURITIES
CUSTOMER AGREEMENT
This agreement sets forth the terms and conditions pursuant to which we,
Xxxxxxxxxx Securities, and our successors and assigns, will maintain your
account for purchases and sales of "securities and other property," which means,
but is not limited to securities, financial instruments, commodities and money
of every kind and nature and related contracts and options. This definition
includes securities or other property currently or hereafter held, carried or
maintained by, or in the possession or control of, us or any of our related
entities for any purpose in and for any account now or hereafter opened by you.
You understand that, if your account is a cash account, the provisions of
paragraphs 18 & 19 are not binding upon you unless you enter into a margin
transaction and, if your account is a commodities account, the provisions of
paragraph 14 shall not be applicable.
1. APPLICABLE LAW AND REGULATIONS. All transactions in your account shall be
subject to all applicable laws and the rules and regulations of all
federal, state and self-regulatory agencies, including, but not limited
to, the Board of Governors of the Federal Reserve System and the
constitution, rules, customs and usages of the exchange or market (and its
clearing house) where the transactions are executed.
2. SECURITY INTEREST AND LIEN. All securities or other property which we may
at any time be carrying or maintaining for you or which may at any time be
in our possession or control for any purpose, including safekeeping, shall
be subject to a general lien for the discharge of all of your obligations
to us, irrespective of whether or not we have made advances in connection
with such securities or other property, and irrespective of the number of
accounts you may have with us.
3. DEPOSITS ON CASH TRANSACTIONS. If at any time Xxxxxxxxxx Securities
considers it necessary for its protection, it may in its discretion
require you to deposit cash or collateral in your account to assure due
performance by you of your open contractual commitments.
4. BREACH OR DEFAULT. In the event of any breach by you of any agreement
with us, or any default by you in any obligation to us, or should you die
or file a petition in bankruptcy or for the appointment of a receiver by
or against you, or should we for any reason whatsoever deem it necessary
for our protection, we are hereby authorized, at our discretion, to sell
any or all of the securities and other property in any of your accounts
which may be in our possession or control, or which we may be carrying or
maintaining for you (either individually or jointly with others), or to
buy-in any securities or other property of which your account or accounts
may be short, or to cancel any other standing orders, to close out your
account or accounts in whole or in part or in order to close out any
commitment made on your behalf. Any such sale, purchase or cancellation
may be made according to our judgment and may be made, at our discretion,
on the exchange or other market where such business is then usually
transacted, or at public auction or at private sale, without advertising
the same and without notice to you or to your personal representative, and
without prior tender, demand or call of any kind upon you, or upon your
personal representative (each of which is expressly waived by you), and we
may purchase the whole or any part thereof free from any right of
redemption, and you shall remain liable for any deficiency; it being
understood that a prior tender, demand, call or notice of any kind shall
not be considered a waiver of our right to sell or buy any securities
and/or other property held by us, or owed us by you, at any time as
hereinbefore provided. Nothing in this agreement shall be construed as
relieving you of any obligations imposed by law.
5. FINALITY OF REPORTS. Reports of execution of orders and statements of
your accounts shall become conclusive if not objected to in writing, the
former within five days, and the latter within ten days, after forwarding
by us to you by mail or otherwise.
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6. RECEIPT OF TRUTH-IN-LENDING. You hereby acknowledge receipt and review of
Xxxxxxxxxx Securities' Truth-in-Lending disclosure statement contained
here within. You understand that interest will be charged on any debit
balances in accordance with the methods described in that statement or in
any amendment or revision thereto which may be provided to you. It is
understood and agreed that the interest charge made to your account at the
close of one charge period will be compounded, unless paid; that is, the
unpaid interest charge for previous periods will be added to the opening
balance for the next charge period, thereby becoming part of the principal
amount due and bearing like interest.
7. TRANSFERS BETWEEN ACCOUNTS. At any time and from time to time, at our
discretion, we may without notice to you apply and/or transfer any or all
securities and/or other property of yours interchangeably between any of
your accounts.
8. SELL ORDERS. It is understood and agreed that you will designate any sell
order for a short account which you place with us as a "short sale" and
hereby authorize us to xxxx such order as being "short", and when placing
with us any order for a long account, will designate it as such and hereby
authorize us to xxxx such order as being "long." Any sell order which you
shall designate as being for long account as above provided is for
securities then owned by you and, if such securities are not then
deliverable by us from any of your accounts, the placing of such order
shall constitute a representation by you that it is impracticable for you
to then deliver such securities to us but that you will deliver them as
soon as it is possible for you to do so without undue inconvenience or
expense.
9. AGE, BENEFICIAL INTEREST. If you are an individual, you represent that you
are of full legal age, and, in any event not less than eighteen years of
age. You further represent that no one except you has an interest in your
account with us.
10. OPERATIONAL MATTERS. Xxxxxxxxxx Securities primarily uses banks located in
California and New York to issue checks. Also, when we hold securities for
your account, dividends and interest are credited on or about the payable
date as received. Most of our customers prefer to have these funds held in
their accounts, and this will be the procedure which we will follow with
your account unless you advise us of an alternative procedure which you
would prefer. For example, we could arrange for checks to be sent to you
monthly. If you require special arrangements, please bring the matter to
our attention. Xxxxxxxxxx Securities' policy is not to receive
remuneration for directing orders to particular brokers/dealers or market
centers for execution. Notwithstanding this policy, should Xxxxxxxxxx
Securities receive such remuneration on any transaction, appropriate
disclosure will be made.
11. CREDIT REPORT. Xxxxxxxxxx Securities may, in its discretion, request an
investigative consumer report on you as a credit reference, which report
may include information with respect to character, general reputation,
personal characteristics and mode of living. In accordance with the Fair
Credit Reporting Act, a copy of any such report, if obtained, will be made
available to you upon written request.
12. CLEARANCE ACCOUNTS. If Xxxxxxxxxx Securities carries your account as
clearing broker by arrangement with another broker through whose courtesy
your account has been introduced, then unless Xxxxxxxxxx Securities
receives from you a written notice to the contrary, Xxxxxxxxxx Securities
shall accept from such other broker, without any inquiry or investigation
by us, (i) orders for the purchase and sale of securities and other
property on margin or otherwise, and (ii) any other instructions
concerning said account. You understand Xxxxxxxxxx Securities shall have
no responsibility or liability to you for any acts or omissions of such
other broker, its officers, employees or agents.
13. WAIVER, ASSIGNMENT AND NOTICES. No term or provision of this Agreement may
be waived or modified unless in writing and signed by the party against
whom such waiver or modification is sought to be enforced. Xxxxxxxxxx
Securities' failure to insist at any time upon strict compliance with this
Agreement or with any of the
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terms hereunder or any continued course of such conduct on its part shall
in no event constitute or be considered a waiver by Xxxxxxxxxx Securities
of any of its rights or privileges. This Agreement contains the entire
understanding between you and Xxxxxxxxxx Securities concerning the subject
matter of this Agreement. You may not assign your rights or obligations
hereunder without first obtaining the prior written consent of Xxxxxxxxxx
Securities. Notice or other communications, including margin calls,
delivered or mailed to the address given below shall, until Xxxxxxxxxx
Securities has received notice in writing of a different address, be
deemed to have been personally delivered to you.
14. ARBITRATION.
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
o THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO 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.
YOU AGREE, AND BY CARRYING AN ACCOUNT FOR YOU, WE AGREE, THAT ALL
CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING 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 IN THE FORUMS PROVIDED BY THE NATIONAL ASSOCIATION
OF SECURITIES DEALERS, INC. OR THE BOARD OF GOVERNORS OF THE NEW YORK
STOCK EXCHANGE, INC., AS YOU MAY ELECT. IF YOU DO NOT MAKE SUCH ELECTION
BY REGISTERED MAIL ADDRESSED TO XXXXXXXXXX SECURITIES, 000 XXXXXXXXXX
XXXXXX, XXX XXXXXXXXX, XX 00000, ATTENTION: LEGAL DEPARTMENT, AND RECEIVED
WITHIN FIVE DAYS AFTER DEMAND BY US THAT YOU MAKE SUCH ELECTION, THEN
XXXXXXXXXX SECURITIES MAY MAKE SUCH ELECTION. THE AWARD OF THE
ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON
ANY AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVlNG
JURISDICTION THEREOF.
No person shall bring a putative or certified class action to arbitration,
nor seek to enforce any pre-dispute arbitration agreement against any
person who has initiated in court a putative class action or who is a
member of a putative class who has not opted out of the class with respect
to any claims encompassed by the putative class action until: (i) the
class certification is denied; (ii) the class is decertified; or (iii) the
customer is excluded from the class by the court. Such forbearance to
enforce an agreement to arbitrate shall not constitute a waiver of any
rights under this agreement except to the extent stated herein.
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15. NEW YORK LAW TO GOVERN. This Agreement and its enforcement shall be
governed by the laws of the State of New York (without regard to any
principles of conflicts of law) and its provisions shall be continuous;
shall cover individually and collectively all accounts which you may open
or reopen with us, and shall inure to the benefit of our present
organization, and any successor organization, irrespective of any change
or changes at any time in the personnel thereof, for any cause whatsoever,
and of the assigns of our present organization or any successor
organization, and shall be binding upon you, and/or your estate,
executors, administrators, heirs and assigns.
16. PARTIAL UNENFORCEABILITY. If any provision herein is or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or a regulatory body having jurisdiction over the
subject matter of this Agreement or is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule, regulation, order or decision. In all
other respects, this Agreement shall continue and remain in full force and
effect.
17. LIMIT ORDERS. Xxxxxxxxxx Securities reserves the right to not accept from
customers limit orders in NASDAQ or over-the-counter securities in which
it acts as a market maker.
18. MARGIN IN MARGIN ACCOUNTS (NOT APPLICABLE TO CASH ACCOUNTS). You hereby
agree to maintain such margin in your margin account as Xxxxxxxxxx
Securities may in its discretion require and you agree to pay forthwith on
demand any debit balance owing with respect to any of your margin
accounts, and if not paid this shall be a breach of this Agreement and
Xxxxxxxxxx Securities may take such action as it considers necessary for
its protection in accordance with this Agreement. You understand that,
even if Xxxxxxxxxx Securities has a policy of giving customers notice of a
margin deficiency, Xxxxxxxxxx Securities is not obligated to request
additional margin from you, and there may be circumstances where
Xxxxxxxxxx Securities will liquidate securities and/or other property in
your account without notice to you. You will be charged interest on your
debit balance which if not paid at the close of an interest period will be
added to the opening balance for the next interest period. Please consult
the attached disclosure statement for an outline of Xxxxxxxxxx Securities'
interest policies.
19. CUSTOMER'S CONSENT TO LOAN OR PLEDGE OF SECURITIES AND OTHER PROPERTY (NOT
APPLICABLE TO CASH ACCOUNTS). You hereby authorize Xxxxxxxxxx Securities
to lend either to itself or to others any securities and other property
held by Xxxxxxxxxx Securities in your margin account and to carry all such
property in its general loans and such property may be pledged, repledged,
hypothecated or rehypothecated, without notice to you, either separately
or in common with other such property for any amounts due to Xxxxxxxxxx
Securities thereon or for a greater sum, and Xxxxxxxxxx Securities shall
have no obligation to retain a like amount of similar property in its
possession and control.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT THE SECURITIES IN YOUR
MARGIN ACCOUNT MAY BE LOANED TO XXXXXXXXXX SECURITIES OR LOANED OUT TO
OTHERS AND THAT YOU HAVE RECEIVED AND REVIEWED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGES 2-3 AT
PARAGRAPH 14.
IF JOINT ACCOUNT BOTH PARTIES MUST SIGN. Persons signing on behalf of
others please indicate title or capacity in which you have signed.
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Xxxxxx Xxxxx
------------------------------------------------
(Typed or Printed Name)
/s/: Xxxxxx Xxxxx
------------------------------------------------
(Signature)
------------------------------------------------
(Signature)
x/x XxxXxxx, Xxx., 000 Xxxxxx Xxxxxx
------------------------------------------------
(Mailing Address)
Xxxxxxxx, XX 00000
------------------------------------------------
(City) (State) (Zip)
9/12/97
------------------------------------------------
(Date)
Acct. XXX-XXXXX-XXX
No.:____________________________________________
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ADDENDUM TO CUSTOMER AGREEMENT
Hypothecation of Customer Securities. Notwithstanding any provision of the
Customer Agreement to the contrary, Xxxxxxxxxx Securities shall not lend, pledge
or hypothecate any securities owned by Customer (whether or not such securities
are held by Xxxxxxxxxx Securities as Collateral for Customer's Obligations) to
facilitate any short sale or otherwise; provided, that this provision shall not
prevent the sale of Collateral pursuant to Section 4.
Death or Incompetency of Customer. Xxxxxxxxxx Securities will not take
action pursuant to Section 4 solely because of Customer's death or adjudged
incompetency if either (a) within 30 days after the date of Customer's death or
declaration of incompetency and an administrator, executor, conservator,
guardian or other personal representative has authority to make investment
decisions with respect to Customer's account, or (b) with respect to Customer's
incompetency, Customer has executed a power of attorney designating an
attorney-in-fact who shall have the power to make investment decisions with
respect to Customer's account.
/s/: Xxxxxx Xxxxx /s/: Xxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Customer Signature For Xxxxxxxxxx Securities
Xxxxxx Xxxxx Xxxxxx X. Xxxxxxx, Managing Director
---------------------------- ------------------------------------
Print Name Print Name and Title
XXX-XXXXX-XXX
Account No._________________
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