EXHIBIT 10.2
FULLY DISCLOSED CLEARING AGREEMENT
BETWEEN
XXXXXX SECURITIES, INC.
AND
BNY CLEARING SERVICES LLC
TABLE OF CONTENTS
1.0 REPRESENTATIONS, WARRANTIES AND COVENANTS.............................1
1.1 BROKER..............................................................1
1.1.1 Registration...................................................1
1.1.2 Authority to Enter Agreement...................................1
1.1.3 Compliance with Rules and Regulations..........................1
1.1.4 Transactions Subject to Xxxxx Stock Disclosure Rules...........2
1.1.5 Reports Available to Broker....................................2
1.1.6 Accuracy of Representations, Warranties and Covenants..........2
1.2 BNYCS...............................................................2
1.2.1 Registration...................................................2
1.2.2 Authority to Enter Agreement...................................2
1.2.3 Compliance with Registration...................................2
1.2.4 Reports Available to Broker....................................2
1.2.5 Accuracy of Warranties and Representations.....................3
2.0 MAINTENANCE OF BOOKS AND RECORDS......................................3
2.1 CURRENT REPORTS.....................................................3
2.2 REGULATORY REPORTS AND RECORDS......................................3
2.3 CONFIDENTIALITY OF INFORMATION......................................3
3.0 RELATIONSHIP WITH CUSTOMERS...........................................3
3.1 NEW ACCOUNTS........................................................3
3.1.1 Acceptance of New Accounts.....................................3
3.1.2 Supervision of Orders and Accounts.............................4
3.1.3 Option Accounts................................................4
3.1.4 Proprietary Accounts...........................................4
3.1.5 Customer Complaints............................................4
3.1.6 Lost, Stolen and Forged Securities.............................5
3.1.7 Placement Activities...........................................5
3.1.8 Marketmaking...................................................5
3.1.9 Restricted and Control Stock Requirements......................5
3.1.10 DVP Transactions...............................................5
3.1.11 Open Orders....................................................5
3.1.12 Prospectus Deliveries..........................................5
3.1.13 SOES Transactions..............................................5
3.1.14 Securities Investor Protection Act.............................6
3.1.15 Tax Reporting..................................................6
3.1.16 Soft-Dollar Arrangements.......................................6
3.1.17 Directed Arrangements..........................................6
3.2 EXTENSION OF CREDIT.................................................6
3.2.1 Presumption of Cash Accounts...................................6
3.2.2 Margin Maintenance and Compliance with Regulation T............6
3.2.3 Margin Calls and Actions Upon Failure to Meet Margin
Calls..........................................................7
3.2.4 Disclosures Pursuant to Rule 10b-16 and Charging of
Interest.......................................................7
3.3 MAINTENANCE OF BOOKS AND RECORDS....................................7
3.4 RECEIPT AND DELIVERY OF FUNDS AND SECURITIES........................7
3.4.1 Cashiering Functions...........................................7
3.4.2 Purchases......................................................7
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3.4.3 Sales..........................................................7
3.4.4 When Issued Transactions.......................................7
3.4.5 Funds or Securities Received by Broker.........................8
3.4.6 Payment of Dividends and Handling of Exchange or
Tender Offers, Rights, Warrants and Redemptions................8
3.4.7 Broker's Responsibilities Under This Section...................8
3.5 SAFEGUARDING OF FUNDS AND SECURITIES................................8
3.6 CONFIRMATIONS AND STATEMENTS........................................8
3.7 ACCEPTANCE OF ORDERS AND EXECUTIONS OF TRANSACTIONS.................8
3.7.1 Responsibility to Accept or Reject Trades......................8
3.7.2 Responsibility for Errors in Execution.........................9
3.8 TRADE DISCREPANCIES.................................................9
3.9 ELECTRONIC ORDER ENTRY DEVICES......................................9
4.0 COMPLIANCE WITH REQUESTS FOR INFORMATION..............................9
5.0 OTHER CLEARING AGREEMENTS.............................................9
6.0 CREDIT, DEBIT OR OTHER SIMILAR CARD ACCOUNT PROGRAM...................9
7.0 FEES AND SETTLEMENTS.................................................10
7.1 COMMISSIONS; FEES FOR CLEARING SERVICES............................10
7.2 SETTLEMENT ACCOUNT.................................................10
7.3 ERROR ACCOUNT......................................................10
8.0 CASH DEPOSIT; REMEDIES ON DEFAULT....................................10
8.1 ESTABLISHMENT OF A DEPOSIT ACCOUNT.................................10
8.2 BNYCS RIGHT TO OFFSET COMMISSIONS AND DEPOSITS.....................11
8.3 INCREASES IN AMOUNT OF DEPOSIT.....................................11
8.4 REMEDIES UPON BROKER'S FAILURE TO PROVIDE INCREASED CASH
DEPOSIT............................................................11
8.5 BNYCS RIGHT TO PLACE A LIEN ON PROPRIETARY ACCOUNTS................11
9.0 LIABILITY AND INDEMNIFICATION........................................12
9.1 LIABILITY OF BROKER................................................12
9.2 LIABILITY OF BNYCS.................................................12
9.3 DEFENSE OF INDEMNIFIABLE ACTIONS...................................12
9.4 FORCE MAJEURE......................................................12
10.0 TERM AND TERMINATION OF AGREEMENT....................................12
10.1 TERMINATION FOR CAUSE..............................................13
10.2 NO SOLICITATION....................................................13
10.3 TERMINATION FEE....................................................14
11.0 TRANSFER OF ACCOUNTS AND CONFIDENTIALITY.............................14
11.1 TRANSFERS..........................................................14
11.2 CONFIDENTIALITY....................................................14
11.2.1 Breach of Confidentiality.....................................14
12.0 THIRD-PARTY RELATIONS................................................15
12.1 DISCLOSURE OF RELATIONSHIP WITH BNYCS..............................15
12.2 NON-EXCLUSIVITY....................................................15
12.3 USE OF THIRD PARTY SERVICES........................................15
12.4 PRIME BROKER NOTIFICATION..........................................15
12.5 SECONDARY BROKERS..................................................16
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13.0 MISCELLANEOUS........................................................16
13.1 ARBITRATION........................................................16
13.2 PROVISIONAL JUDICIAL REMEDIES......................................16
13.3 APPLICABLE LAW.....................................................17
13.4 ASSIGNMENT.........................................................17
13.5 AMENDMENTS.........................................................17
13.6 TRAINING EXPENSES..................................................17
13.7 SEVERABILITY.......................................................17
13.8 TELEPHONE CONVERSATIONS............................................17
13.9 NOTICES............................................................17
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FULLY DISCLOSED CLEARING AGREEMENT
This Agreement is made and entered into as of the 5th day of June,
2001 by and between BNY Clearing Services LLC ("BNYCS"), a Delaware limited
liability company, and Xxxxxx Securities, Inc. ("Broker"), a Delaware
corporation. This Agreement shall be deemed effective at 12:01 AM on the first
day business is transacted after approval is granted by the New York Stock
Exchange ("NYSE") (the "Commencement Date" as defined in the body of this
Agreement).
RECITALS
WHEREAS, Broker is registered with the Securities and Exchange
Commission ("SEC") as a broker-dealer and engages in the business of providing
securities and investment services to customers, but has elected not to clear
and carry customer accounts; and
WHEREAS, BNYCS is registered with the SEC as a broker-dealer and
engages in the business of clearing and carrying the accounts of other
broker-dealers or other financial organizations; and
WHEREAS, the parties intend that Broker will introduce certain of
Broker's customers to BNYCS on a fully disclosed basis, and that BNYCS as an
independent contractor may elect to clear and carry the accounts of certain of
said customers as well as any proprietary accounts of Broker (collectively,
"Accounts") pursuant to the terms and conditions hereof; and
WHEREAS, the parties do not intend that a joint venture, partnership,
agency or other relationship be created as between them.
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties intending to be legally bound, hereby agree as
follows:
1.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
1.1 Broker
Broker represents, warrants and covenants that:
1.1.1 Registration.
Broker is, and during the term of this Agreement will remain, duly registered
and in good standing as a broker dealer with the SEC and is a member firm in
good standing of the NASD and of every national securities exchange or other
securities association of which Broker is a member, and of the Securities
Investor Protection Corporation ("SIPC"). Broker is also duly licensed as a
broker dealer in every state and each jurisdiction where the nature of the
business conducted or the location of its employees makes such license
necessary.
1.1.2 Authority to Enter Agreement.
Broker has all requisite authority, whether arising under applicable federal or
state law or the rules and regulations of any securities exchange or other
self-regulatory organization ("SRO") to which Broker is subject, to enter into
this Agreement and to discharge the duties and obligations apportioned to it in
accordance with the terms hereof.
1.1.3 Compliance with Rules and Regulations.
Broker is in compliance, and during the term of this Agreement will remain in
compliance, with (i) all applicable laws, statutes, regulations, rules, codes,
ordinances, decrees, writs or orders enacted, adopted issued or promulgated by
any governmental authority, regulatory body or SRO and (ii) the registration,
qualification, capital, financial reporting, customer protection, and other
requirements of every SRO of which Broker is a member, of the SEC and of every
state to which jurisdiction Broker and each of its employees are subject. (The
applicable federal, state and local laws, rules and regulations, as well as the
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rules, regulations, constitutions, by-laws and stated policies and
interpretations of each SRO having jurisdiction over BNYCS or Broker, are
collectively referred to herein as "Applicable Regulations".)
1.1.4 Transactions Subject to Xxxxx Stock Disclosure Rules.
Broker does not, and during the term of this Agreement will not, introduce
Account transactions in designated securities (as defined in Section 3(a)(51) of
the Securities Exchange Act of 1934, as amended; hereinafter, the "Exchange
Act") to BNYCS for settlement, clearance or execution which are or will be
subject to the Xxxxx Stock Disclosure Rules of Exchange Act Section 15(g) and
Rules 15g-2 through 15g-6 thereunder, without BNYCS' prior written consent.
1.1.5 Reports Available to Broker.
Broker understands that, pursuant to NYSE Rule 382, BNYCS will furnish Broker,
upon execution of this Agreement and annually thereafter, with a list of the
reports Broker can choose to receive to assist Broker to supervise and monitor
its Customer Accounts in order for Broker to carry out its functions and
responsibilities pursuant to this Agreement ("Compliance Reports"). Broker
agrees to promptly notify BNYCS in writing of those specific Compliance Reports
Broker desires to receive.
1.1.6 Accuracy of Representations, Warranties and Covenants.
Broker will notify BNYCS promptly if any of the representations, warranties and
covenants set forth in this Section 1.1 cease to be true.
1.2 BNYCS.
BNYCS represents and warrants that:
1.2.1 Registration.
BNYCS 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, NASD and SIPC. BNYCS is also
duly licensed as a broker dealer in every state to which jurisdiction BNYCS and
each of its employees are subject.
1.2.2 Authority to Enter Agreement.
BNYCS has all requisite authority, whether arising under applicable federal or
state law, or the rules and regulations of any SRO to which BNYCS is subject, to
enter into this Agreement and to discharge the duties and obligations
apportioned to it in accordance with the terms hereof.
1.2.3 Compliance with Registration.
BNYCS is in compliance, and during the term of this Agreement will remain in
compliance with, the Applicable Regulations, including the registration,
qualification, capital, financial reporting, customer protection and other
requirements of every SRO of which BNYCS is a member, of the SEC and of every
state in which it is licensed as a broker-dealer.
1.2.4 Reports Available to Broker.
Pursuant to NYSE Rule 382, BNYCS will furnish Broker, upon execution of this
Agreement and annually thereafter, with a list of the Compliance Reports Broker
can choose to receive to assist Broker to supervise and monitor its Customer
Accounts in order for Broker to carry out its functions and responsibilities
pursuant to this Agreement. BNYCS will make available to Broker those Compliance
Reports that Broker requests from the list.
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1.2.5 Accuracy of Warranties and Representations.
BNYCS will notify Broker promptly if any of the representations and warranties
set forth in this Section 1.2 cease to be true.
2.0 MAINTENANCE OF BOOKS AND RECORDS
2.1 Current Reports.
Broker, contemporaneously with its execution hereof, is providing to BNYCS true,
complete and correct copies of Broker's current Monthly and/or Quarterly, as
appropriate, FOCUS Report (pursuant to Section 17 of the Exchange Act and Rule
17a-5 thereunder) and its then current Form BD.
2.2 Regulatory Reports and Records.
Broker agrees to promptly provide to BNYCS, throughout the term of this
Agreement, true, complete and correct copies of (i) any amendments to Broker's
Form BD within five (5) calendar days of its filing with the SEC, (ii) any
notices which Broker receives concerning any referral pursuant to Section 5(a)
of the Securities Investor Protection Act of 1970 or any closer-than-normal
surveillance or restrictions or limitations on Broker's business from the SEC or
from any SRO, all within three (3) business day of Broker's receipt thereof,
(iii) any action, suit, investigation, inquiry or proceeding, pending or
threatened, against or affecting Broker or that is reasonably expected to have a
material impact on the capital or financial condition of Broker, by or before
any court, arbitrator, governmental authority or SRO of which Broker is a
member, all within three (3) business days of Broker's receipt thereof, and (iv)
any notices which Broker files with the SEC or any SRO pursuant to Section 17 of
the Exchange Act and Rule 17a-11 at the same time and in the same manner as
required under said Rule.
In addition, Broker shall provide to BNYCS, on a quarterly basis, true, complete
and correct copies of Broker's then current FOCUS Report and annual certified
financial statement required pursuant to the Exchange Act.
2.3 Confidentiality of Information.
BNYCS will hold any and all documents and information provided by Broker under
this Section 2.0 et seq. in confidence and will not disclose them to any third
parties, except to the extent necessary to comply with court process, judicial
order or any Applicable Regulation. BNYCS will not use such information for any
purposes not contemplated within this Agreement.
3.0 RELATIONSHIP WITH CUSTOMERS
Except to the extent set forth in this Agreement, nothing in this Agreement
shall be deemed or construed to confer any third-party beneficiary or other
rights upon any Customer or other person not party hereto. As between Broker and
BNYCS, Broker shall be responsible for the relationship with its Customers.
Accordingly, unless specifically allocated to BNYCS hereunder, Broker shall
retain responsibility for all duties and functions concerning the Accounts and
Broker's Customers. Pursuant to NYSE Rule 382 and Rule 3230 of the NASD's
Conduct Rules, the following functions are specifically allocated between Broker
and BNYCS as follows.
3.1 New Accounts.
3.1.1 Acceptance of New Accounts.
Broker shall be responsible for opening and approving new Accounts. BNYCS will
determine, using reasonable discretion, whether or not to accept or (thereafter)
carry or continue to carry such Account(s) for clearance and settlement
purposes. In each case, BNYCS will elect, with reasonable discretion, the type
of activity (i.e., cash, margin or options account) for which it is willing to
act with respect to each Account. BNYCS will be responsible to notify each
Account of the allocation of functions as required by NYSE Rule 382 and Rule
3230 of the NASD's Conduct Rules.
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3.1.2 Supervision of Orders and Accounts.
Except as otherwise specified in this Agreement, Broker is solely responsible
for the conduct of the Accounts, and ensuring that the transactions conducted
therein are in compliance with Applicable Regulations. Such responsibility
includes, but is not limited to: (i) using due diligence to learn and on a
continuing basis to know the essential facts of each Customer, including
verifying each Customer's identity and address(including any address changes),
knowing all persons holding power of attorney over any Account, verifying the
source of funds credited to each Account and being familiar with each order in
any Account, and at all times to fully comply with the requirements of NYSE Rule
405 and the 2300 Series of the NASD Conduct Rules or comparable requirements of
any other Applicable Regulations; (ii) selecting, investigating, training, and
supervising all of its personnel who open, approve, authorize or otherwise
handle transactions in the Accounts; (iii) establishing written procedures for
the conduct of the Accounts and ongoing review of all transactions in Accounts,
and maintaining compliance and supervisory personnel adequate to implement such
procedures; (iv) handling of any discretionary accounts and the furnishing of
any investment advice to any customer, including determining the suitability for
each Customer of all transactions, including option transactions; (v) ensuring
that there is a reasonable basis for all recommendations made to Customers; (vi)
determining the appropriateness of the frequency of trading in Accounts; (vii)
determining the authorization, legality and compliance with the Applicable
Regulations of each transaction in the Account and reasonably ensuring that no
transaction or Account is being used as a conduit for money laundering or other
illicit purposes; (viii) handling any accounts for employees or officer of any
broker-dealer, SRO or other financial institution, including compliance with
NASD Conduct Rule 3050 and NYSE Rule 407; and (ix) obtaining and maintaining all
documents necessary for the performance of Broker's responsibilities under this
Agreement and retaining such documents in accordance with all Applicable
Regulations. Broker agrees to obtain from Customer such additional information
as BNYCS may require to comply with Applicable Regulations.
3.1.3 Option Accounts.
In the event that any Customer elects to engage in listed options transactions
in an Account and BNYCS accepts the options account or Broker enters options
transactions in an Account accepted by BNYCS, Broker agrees to (i) abide by
BNYCS' requirements and time limitation for accepting an exercise notice with
respect to each Account's options positions, which requirements and time
limitations may be different from the minimum requirements imposed by the
Options Clearing Corp. ("OCC") or other SRO from time to time, (ii) determine
the suitability of the Customer for trading options and approving specific
options strategies, (iii) provide the Customer with a current copy of the OCC
disclosure document and applicable updates as published from time to time by OCC
(and complying with such other requirements involving the dissemination of
disclosure documents, including prospectuses, as may be required from time to
time by Applicable Regulations), and (iv) notify the Customer when Customer has
been assigned delivery responsibility regarding any short options positions, and
accept exercise notices from the Customer regarding long options positions.
3.1.4 Proprietary Accounts.
Broker may request that BNYCS maintain one or more Accounts on its books to
reflect the proprietary securities and/or cash positions of Broker (a
"Proprietary Account"). BNYCS may, in its sole discretion, agree or refuse to
agree to maintain any such Proprietary Account. If BNYCS agrees to maintain one
or more Proprietary Accounts, all of the other terms and conditions of this
Agreement shall apply, and each such Proprietary Account shall be deemed an
"Account" hereunder, except to the extent that this Agreement provides for
differing treatment of Customer Accounts and Proprietary Accounts.
3.1.5 Customer Complaints.
Broker shall be responsible for answering all customer complaints pertaining to
functions allocated to it in this Agreement. Similarly, BNYCS shall be
responsible for answering all customer complaints pertaining to functions
allocated to it in this Agreement. In order for Broker to carry out its
functions and responsibilities pursuant to this Agreement and in keeping with
NYSE Rule 382, Broker hereby directs and authorizes BNYCS to transmit any and
all customer complaints received by BNYCS pertaining to functions allocated to
Broker in this Agreement (i) to Broker, and (ii) to Broker's Designated
Examining Authority ("DEA") or (if none) to its appropriate regulatory
authority. A copy of BNYCS's transmittal letter to Broker's DEA (or other
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regulatory authority) shall be forwarded to the complaining customer. Broker and
BNYCS agree to cooperate with each other, if so requested, in supplying
information to respond to customer complaints or inquiries.
3.1.6 Lost, Stolen and Forged Securities.
Broker will be responsible for any defect in title to securities which may have
been forged, counterfeited or raised or otherwise altered, or may have been lost
or stolen, whether or not such securities shall have been received from Broker
by BNYCS or deposited with BNYCS by Broker for any Account, or whether or not
such securities shall have been received by BNYCS directly from, or deposited
with BNYCS directly by, any such Account for any purpose whatsoever and which
securities shall have been accepted by BNYCS.
3.1.7 Placement Activities.
Broker shall provide to BNYCS a written list of public offerings of securities
to which Broker intends to enter into, or join, a syndicate (whether as part of
the underwriting or selling group) relating to the issuance or placement of
those securities. BNYCS shall have the right to limit or prohibit Broker's
syndicate activities with respect to any security. Under no circumstances may
Broker join a syndicate without the prior written approval of BNYCS.
3.1.8 Marketmaking.
Upon the execution of this Agreement, Broker shall provide to BNYCS a written
list of all securities with respect to which the Broker is a marketmaker. Broker
shall give prior written notice of any proposed changes in the marketmaking
activities, including changes in the identity of the securities for which it
makes a market. The Broker shall provide BNYCS on a timely basis information
sufficient to ensure that any confirmations sent to Customers by Broker on
BNYCS' behalf contain correct information on the Broker's role in the
transaction. BNYCS shall have the right to limit or prohibit Broker's
marketmaking activities with respect to any security.
3.1.9 Restricted and Control Stock Requirements.
Broker shall be solely responsible for determining whether any securities held
in any Account are restricted or control securities as defined by Applicable
Regulations. Broker is solely responsible for assuring that orders executed for
such securities comply with all Applicable Regulations.
3.1.10 DVP Transactions.
Broker will be solely responsible (i) for complying with the requirements of
NYSE Rule 387 with respect to all delivery versus payment ("DVP") or receipt
versus payment ("RVP") transactions, except for delivery of confirmations and
(ii) that all Customers who engage in DVP or RVP transactions (and their agents)
will utilize the facilities of a securities depository or clearing agency for
the confirmation, acknowledgment and book entry settlement of depository
eligible transactions, subject to the exceptions to NYSE Rule 387.
3.1.11 Open Orders.
BNYCS shall have the power to place open orders as instructed by Broker as of
the effective date of this Agreement, and appropriate adjustments shall be made
by BNYCS to reflect that BNYCS has acted as Broker on the open orders with
specialists on any national securities exchange or other securities exchange.
3.1.12 Prospectus Deliveries.
Broker will have sole responsibility for delivering (or making available to
BNYCS for delivery) any prospectus required pursuant to the prospectus delivery
requirements of the Securities Act of 1933, as amended.
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3.1.13 SOES Transactions.
In connection with all transactions for Accounts, Broker shall be solely
responsible for compliance with all rules relating to the Small Order Execution
System ("SOES") of the NASD including, without limitation, prohibitions on
proprietary trading and volume restrictions.
3.1.14 Securities Investor Protection Act.
For the purposes of the financial responsibility rules and the Securities
Investor Protection Act only, the Customers and Accounts shall be considered to
be Customers and Accounts of BNYCS and not of Broker. Nothing in this paragraph
shall otherwise change or affect the provisions of this Agreement that provide
that a Customer or Account is Broker's Customer or Account for all other
purposes, including but not limited to supervision, suitability and
indemnification.
3.1.15 Tax Reporting.
Broker shall be solely responsible for (i) the preparation of annual tax
reporting information as required by the Federal, State and Municipal taxing
authorities, (ii) the reporting of this tax information to Customers and the
appropriate taxing authorities, and (iii) compliance with all "due diligence"
requirements of the Internal Revenue Service as they relate to any Accounts.
Upon request from Broker, BNYCS shall assist Broker in connection with items (i)
and (ii) of this paragraph.
3.1.16 Soft-Dollar Arrangements.
Broker shall be solely responsible for compliance with the Applicable
Regulations relating to or concerning any arrangement or understanding Broker
may have with any manager, advisor or agent exercising any authority (including,
without limitation, investment discretion) over an Account to use commissions to
obtain research or other services (collectively, a "Soft-Dollar Arrangement")
and for obtaining all appropriate authorities and agreements related to any
Soft-Dollar Arrangement.
3.1.17 Directed Arrangements.
Broker shall be solely responsible for compliance with the Applicable
Regulations related to or concerning any arrangement or understanding Broker may
have with any Account to rebate any funds, including, without limitation, any
portion of any commission, xxxx-up, xxxx-down, fee, interest or other charge, or
to pay the cost of any service or product for an Account (collectively, a
"Directed Arrangement") and for obtaining all appropriate authorities and
agreements related to any Directed Arrangement.
3.2 Extension of Credit.
3.2.1 Presumption of Cash Accounts.
BNYCS 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, unless, on or prior to settlement, Broker has furnished BNYCS
with properly executed and binding customer margin and hypothecation/lending
agreements in a form acceptable to BNYCS.
3.2.2 Margin Maintenance and Compliance with Regulation T.
Broker is responsible to BNYCS for: (i) all payments required so that all
Accounts, whether cash or margin, shall be at all times in compliance with
Regulation T ("Reg T") of the Federal Reserve Board, as amended; (ii)
maintaining margin in each margin Account to the satisfaction of BNYCS,
including imposing a higher margin requirement for a particular account when, in
BNYCS' discretion, the past history or nature of the account or other factors or
the securities held in it warrant such action; and (iii) the payment of any
unsecured debit balance in an Account. BNYCS has sole discretion to execute or
to direct Broker to execute with or without prior notice buy-ins and sell-outs
in any cash or margin Account whenever it determines such action appropriate
regardless whether the Account complies with applicable margin maintenance
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requirements or has requested an extension of time in which to make payment. Any
request by Broker that BNYCS should waive either buying-in or selling-out an
Account must be in writing signed by an officer, partner or principal of
Broker's firm and Broker agrees that if BNYCS accedes to Broker's request,
Broker will indemnify and hold BNYCS and its affiliates, as well as their
respective controlling persons, successors, assigns, directors, officers,
employees, representatives and agents (such persons being the "Indemnified
Parties") harmless against any loss, liability, damage, claim, cost or expense
(including, but not limited to, reasonable fees and expenses of legal counsel)
arising therefrom, including the enforcement of this provision. BNYCS shall have
sole discretion as to any application for an extension of time for any Account
to make any payment required by Reg T.
3.2.3 Margin Calls and Actions Upon Failure to Meet Margin Calls.
After the initial margin for a transaction has been received, subsequent margin
calls may be made by BNYCS at its discretion. BNYCS 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, BNYCS reserves the right to collect the amount due directly from
Broker's Customer. Broker agrees to cooperate with BNYCS in complying with and
obtaining margin in response to such calls. Broker will be responsible and
indemnify BNYCS (including reasonable attorneys' fees) for any losses to BNYCS
resulting from failure on the part of a Customer to meet any margin call. Broker
shall promptly meet all margin calls with respect to its own (proprietary)
Accounts. Any failure by Broker to honor such margin calls may be cause for
termination at BNYCS' sole discretion under Sect. 11.1 of this Agreement.
3.2.4 Disclosures Pursuant to Rule 10b-16 and Charging of Interest.
BNYCS shall be responsible for sending, at the time of the opening of a margin
Account, to each customer who owns such margin Account, a written statement in
compliance with Rule 10b-16 ("Disclosure of Credit Terms in Margin
Transactions") under the Exchange Act, provided that Broker has notified BNYCS,
in a timely fashion, in the format designated by BNYCS that each appropriate
Account is a margin Account. BNYCS shall be responsible for matters relating to
the payment or charging of interest on margin Accounts and the
hypothecation/lending of appropriate securities to finance margin transactions.
3.3 Maintenance of Books and Records.
Broker will be responsible for obtaining and verifying all information relating
to Customers to enable BNYCS to discharge its duties under this Agreement.
Broker will be responsible for informing BNYCS as to the nature of the Account
(i.e., cash, margin and/or options) so as to permit BNYCS to discharge its
obligations to document such Account(s). Moreover, Broker shall confirm to
BNYCS, in a manner deemed acceptable by a duly authorized and designated officer
of BNYCS, Broker's receipt of proper authorization from each appropriate
Customer, to open any margin and/or options Accounts. In the event requested
documentation or information is not promptly received by BNYCS, BNYCS has the
right to refuse to accept orders for such Account, to close the Account and to
withhold Broker's commissions and assess upon Broker any other penalties it sees
fit.
3.4 Receipt and Delivery of Funds and Securities.
3.4.1 Cashiering Functions.
BNYCS shall perform normal cashiering functions for Accounts introduced by
Broker. These functions shall include receipt and delivery of securities
purchased, sold, borrowed and loaned and provision of custody of securities and
funds.
3.4.2 Purchases.
Broker shall be responsible for purchases made for Customers until actual and
complete payment has been received by BNYCS. When payment is tendered to BNYCS
in the form of a check, Broker shall remain responsible until the check has been
paid and the proceeds actually received and credited to BNYCS.
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3.4.3 Sales.
Broker shall be responsible for sales until BNYCS has received, in an acceptable
form, the securities involved in a transaction.
3.4.4 When Issued Transactions.
In the case of the payment and delivery of securities on a "when issued" basis,
Broker shall remain responsible, as set forth in this Agreement, until necessary
and satisfactory payment of funds or delivery of securities has been received by
BNYCS.
3.4.5 Funds or Securities Received by Broker.
Broker shall promptly deposit with BNYCS funds or securities received by Broker
from its Customers, together with such information as may be relevant or
necessary to enable BNYCS to record such remittances and receipts in the
respective customer Accounts.
3.4.6 Payment of Dividends and Handling of Exchange or Tender
Offers, Rights, Warrants and Redemptions.
In connection with holding the securities in custody in each Account, BNYCS will
(i) collect and pay dividends and interest; (ii) transmit and handle tenders,
exchanges, rights and warrants pursuant to tender offers and exchange offers;
(iii) transmit proxy materials and other shareholder communications to Broker,
which shall be solely responsible for any contact with an Account with reference
to such matters; and (iv) handle exercises or expirations of rights, options,
warrants and redemptions.
3.4.7 Broker's Responsibilities Under This Section.
It shall be the responsibility of Broker to accurately and timely provide BNYCS
with instructions sufficient to permit BNYCS to discharge its obligations under
this Section 3.4 et seq.
3.5 Safeguarding of Funds and Securities.
BNYCS shall be responsible for the safekeeping of all funds and securities
received by it pursuant to this Agreement.
3.6 Confirmations and Statements.
BNYCS, on behalf of Broker, will prepare confirmations and monthly statements
and will promptly transmit them to Customers and Broker, except that Broker and
BNYCS may agree for Broker to transmit confirmations to Customer. Broker
acknowledges that such confirmations and statements shall be prepared and
delivered on Broker's behalf and at its direction, and that such confirmations
and statements shall remain, for all purposes, the confirmations and statements
of Broker. Broker acknowledges that it shall have sole responsibility for the
information and disclosures in such confirmations and statements and for their
compliance with the Applicable Regulations. All such confirmations and
statements will be deemed accurate and correct, and Broker will be deemed to
have waived any claim otherwise, unless within ten (10) business days of
receipt, Broker notifies BNYCS in writing of any alleged errors or
discrepancies. Any such notice shall include all documentation necessary to
substantiate Broker's claim, and Broker agrees to provide such further
documentation and information as BNYCS may request in connection therewith.
3.7 Acceptance of Orders and Executions of Transactions.
3.7.1 Responsibility to Accept or Reject Trades.
Broker shall be solely responsible for the acceptance of any orders or the
execution of any securities orders for Accounts. Broker shall transmit all
8
orders for Accounts in accordance with such procedures as BNYCS may from time to
time establish. BNYCS may, in its sole discretion, determine whether to accept a
properly transmitted order for execution, clearance and settlement. If BNYCS
agrees to execute transactions for any Account, Broker shall designate on
Exhibit 1 attached hereto the securities market or markets in which it desires
that BNYCS execute such orders. Broker may, with the consent of BNYCS, amend
Exhibit 1 at any time, upon three (3) business days' prior notice to BNYCS.
BNYCS, acting solely as Broker's agent, and not as the agent for Customer, will
execute the transactions as requested by Broker using reasonable business
efforts in accordance with custom and practice within the securities industry.
BNYCS may determine, as it deems advisable in its sole discretion, the
methodology (including, without limitation, the selection of floor brokers or
automated execution facilities of any SRO) which will be utilized in the
execution of such trades. In the event that Broker executes a transaction or
otherwise designates the contra broker for a transaction and the contra broker
fails to perform its part of the transaction (including without limitation
failure to settle the transaction in whole or in part), Broker shall be solely
responsible for any loss or damage to BNYCS, any Customer or any Account.
3.7.2 Responsibility for Errors in Execution.
BNYCS shall have no liability to Broker or to any of Broker's Customers for any
loss suffered by an Account with respect to the execution and clearance of any
securities order as provided for herein, with the exception of any grossly
negligent, dishonest, fraudulent or criminal act or omission on the part of
BNYCS or any of its officers, directors or employees when acting within the
scope of their employment with respect to the services provided by BNYCS. The
amount of such liability shall be limited to the difference between the purchase
or sale price at which the securities order in question was executed and the
price at which it would have been executed but for the error. BNYCS shall not be
liable for any consequential or special damages suffered by Broker or by any of
its Customers.
3.8 Trade Discrepancies.
Broker agrees to provide, no later than the day after trade date, notification
of any omission of, or error in, any detail of a trade or any discrepancy
between the floor broker's ticket and Broker's order ticket as transmitted to
BNYCS by Broker with regard to any detail of a trade (collectively, "Trade
Discrepancies"). Broker will indemnify and hold BNYCS and the Indemnified
Parties (as defined in Section 3.2.2) harmless against any loss, liability,
damage, claim, cost or expense (including, but not limited to, reasonable fees
and expenses of legal counsel) arising out of or in connection with such Trade
Discrepancies or as a result of any investigation conducted in connection with
such Trade Discrepancies or in the defense or settlement of any action or
proceeding brought by the SEC or any SRO arising out of or in connection with
such Trade Discrepancies.
3.9 Electronic Order Entry Devices.
To the extent BNYCS provides Broker with electronic order entry devices to route
orders to the NYSE, BNYCS shall assure itself that Broker will employ adequate
written control procedures to minimize the potential for errors.
4.0 COMPLIANCE WITH REQUESTS FOR INFORMATION
Broker agrees to provide to BNYCS, upon request from BNYCS, any information
which BNYCS may request in connection with carrying out this Agreement or in
order to comply with Applicable Regulations, including, without limitation,
information relating to aggregation, speculative position limits or large trader
reports. Broker agrees to obtain such information from Customer(s) as necessary.
5.0 OTHER CLEARING AGREEMENTS
During the term of this Agreement, Broker agrees that BNYCS will be Broker's
only clearing agent and that all transactions, in any account serviced by
Broker, will be cleared exclusively through BNYCS. This provision can be
modified only with the written consent of BNYCS.
9
6.0 CREDIT, DEBIT OR OTHER SIMILAR CARD ACCOUNT PROGRAM
From time to time during the term of this Agreement, BNYCS may be a party to a
credit, debit or other similar card (a "Credit Card") processing agreement or
similar contract (the "Credit Card Agreement") with a bank or other party (the
"Credit Card Provider") authorized to establish and offer participation in a
Credit Card program. Pursuant to the Credit Card Agreement, BNYCS, if requested
by Broker, may provide eligible Customers with the ability to access certain
assets in their Accounts, through the use of a Credit Cards, checks linked to a
Credit Card and/or automatic teller machine ("ATM") transactions (the
"Program"). Pursuant to the Program, if requested by Broker, BNYCS will
recommend that the Credit Card Provider establish Credit Card accounts for those
Customers who are eligible to participate in the Program and who enter into
appropriate customer agreements and documentation with BNYCS and the Credit Card
Provider.
In the event Broker requests BNYCS to offer participation in the Program to
Broker's eligible Customers, as part of Broker's obligations under this
Agreement, Broker agrees to fully cooperate with BNYCS and/or the Credit Card
Provider and to comply promptly with all procedures applicable to the Program as
specified by BNYCS and/or the Credit Card Provider, including, without
limitation, all procedures applicable to the operation of the Program with
respect to eligibility requirements, agreements, forms, materials, notifications
and disclosures, credit terms and conditions. Procedures specified by BNYCS
and/or the Credit Card Provider with respect to the operation of the Program may
be in the form of a written procedures manual, one or more memoranda, or written
or oral instructions as amended or in effect from time to time.
In consideration of offering participation in the Program to eligible Customers,
Broker and BNYCS agree that Broker's indemnification and hold harmless
obligations under Section 9.0 hereof shall include without limitation any and
all actions, claims, causes of action, liabilities, losses, damages and expenses
(including without limitation attorneys fees and costs) resulting from or in
connection with any use or misuse (whether by the Customer or a third person) of
any and all Credit Cards, checks linked to Credits Cards, ATMs or associated
transactions.
7.0 FEES AND SETTLEMENTS
7.1 Commissions; Fees for Clearing Services.
BNYCS shall charge each Account the commission which Broker directs it to charge
for each transaction. Broker will be solely responsible for the amounts of such
commissions, xxxx-ups and xxxx-xxxxx and their compliance with the Applicable
Regulations. Broker agrees to pay BNYCS for its services the amounts set forth
in Exhibit 2 attached hereto. Such fees may be changed by BNYCS at any time on
thirty (30) days' prior written notice to Broker or at such other times as may
be agreed to by both parties. The parties have agreed to certain additional
arrangements concerning fees, upon the terms and conditions set forth in Exhibit
3.
7.2 Settlement Account.
In connection with the clearing services performed by BNYCS hereunder, BNYCS
will establish on BNYCS' books a Broker Account designated as a settlement
account (the "Settlement Account"). Commissions charged to each Account shall be
collected by BNYCS after the end of each month. The amounts due BNYCS pursuant
to Section 7.1 and any other amounts owed by Broker to BNYCS, whether pursuant
to this Agreement or otherwise, shall be deducted from the commissions due
Broker or other amounts in the Settlement Account.
Residual credit balances in the Settlement Account shall be remitted to Broker
by BNYCS on a monthly basis, approximately ten (10) days after the final
settlement date of each month.
If Broker's Settlement Account has a negative balance, at any time, after
amounts due to BNYCS are deducted or charged pursuant to this Section 7.2,
Broker shall deposit an additional amount in the Settlement Account to eliminate
such deficiency. If Broker fails to make such additional deposit within one (1)
business day after Broker is notified of the negative balance, BNYCS may, in its
sole discretion, draw against the Cash Deposit and apply the proceeds against
Broker's obligations due hereunder, take any of the actions specified in Section
8.0 et seq. or terminate this Agreement forthwith.
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7.3 Error Account.
In addition, BNYCS may establish on its books an "error account" for the account
and risk of Broker, upon terms and conditions which are consistent with custom
and practice in the securities and/or futures industry. The negative balance in
such error account, if any, may at any time be charged by BNYCS in its sole
discretion to the Settlement Account.
8.0 CASH DEPOSIT; REMEDIES ON DEFAULT
8.1 Establishment of a Deposit Account.
To further assure Broker's performance of its obligations under this Agreement
and not as an ownership interest, Broker shall deposit as security with BNYCS,
on or before the execution of this Agreement, a cash deposit or cash equivalents
in the amount set forth on Exhibit II (the "Cash Deposit").
The Cash Deposit shall remain on deposit for a period expiring no sooner than
thirty (30) days subsequent to the Termination Date of this Agreement (as
defined in Section 11.0 et seq.). Upon the conclusion of such thirty-day period,
BNYCS shall remit, pay and deliver the Cash Deposit to Broker, less any amounts
due to BNYCS from Broker pursuant to this Agreement and less any amounts BNYCS
deems, in its sole discretion, appropriate for its protection from any claim or
proceeding of any type either pending or threatened. If any legal action or
proceeding is not commenced with respect to any such pending or threatened claim
within a reasonable time after the Termination Date of this Agreement, any
amount withheld by BNYCS from the Cash Deposit with respect to such claim shall
be promptly paid and delivered to Broker.
8.2 BNYCS Right to Offset Commissions and Deposits.
If (i) the amount due to BNYCS from Broker in any month exceeds the amount
available in Broker's Settlement Account, (ii) Broker fails to eliminate any
negative balance in the Settlement Account within two (2) business days, as
provided in Section 8.3 (iii) BNYCS shall have any claim against Broker or a
Customer of Broker which has not been resolved within five (5) business days
after BNYCS presents such claim to Broker, or (iv) BNYCS 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 (5)
business days after being requested to do so, BNYCS may draw against the Cash
Deposit in the amount outstanding and apply the proceeds to the Broker's
obligations due hereunder. It is understood that BNYCS will attempt to provide
Broker with prior notice in all cases of any deduction from the Cash Deposit.
8.3 Increases in Amount of Deposit.
BNYCS reserves the right to request an increase in the amount of the Cash
Deposit when, in BNYCS' sole opinion, (i) the nature or extent of Broker's
business should change, (ii) the financial condition (including reserves and
contingent liabilities) of Broker should change, (iii) the nature of the
Accounts (including the nature of the positions in the Accounts or the total
amount of margin and capital at risk) should change, or (iv) the volume of
business being performed by BNYCS pursuant to this Agreement changes; such that
BNYCS' exposure to the financial risks for which the Cash Deposit has been
deposited by Broker has increased such that the current available amount of the
Cash Deposit is insufficient to ensure against such risks. If BNYCS requests
such an increase, Broker shall provide an additional Cash Deposit in the amount
so requested by the date specified by BNYCS. Such date shall be set by BNYCS in
its sole discretion.
8.4 Remedies Upon Broker's Failure to Provide Increased Cash Deposit.
Should Broker fail to provide the increased Cash Deposit by the date so
specified by BNYCS under Section 8.3, BNYCS may treat such failure as a default
in the performance of Broker's obligations under this Agreement and may draw
against the existing Cash Deposit and apply the proceeds against Broker's
obligations due hereunder and/or terminate this Agreement pursuant to the
provisions in Section 11.1.
Alternatively, should BNYCS elect not to terminate this Agreement
notwithstanding such a default, BNYCS may choose to limit the availability of
its services to the Accounts so as to enable BNYCS to limit its exposure to any
increased risks. Limitations on services may include, but are not limited to,
(i) the refusal by BNYCS to accept additional Margin or any other Accounts, (ii)
the termination of BNYCS' relationship with any Accounts, (iii) the imposition
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by BNYCS of higher margin requirements in any or all Accounts, or (iv) the
refusal by BNYCS to accept any additional orders for any Accounts or restricting
acceptance of any orders to liquidating orders only. As provided hereunder, such
limitations may be enforced by BNYCS by (i) its refusal to take or make delivery
on one or more transactions, (ii) its refusal to extend margin credit or to
accept order(s) for one or more Margin Accounts, (iii) its liquidation of
positions in Accounts for failure to meet calls for higher margin, or (iv)
rejecting or "X.X.xxx" one or more transactions given up for clearance by BNYCS.
Any determination by BNYCS not to terminate this Agreement pursuant to this
Section 8.0 et seq. shall not act as a waiver of BNYCS' right to request an
increase in the amount of the Cash Deposit at any future time. In addition,
Broker agrees that if this Agreement is terminated for any reason, BNYCS may,
among other things, draw against the Cash Deposit and apply the proceeds against
any amounts Broker owes BNYCS because of Broker's failure to meet any of its
obligations under this Agreement.
8.5 BNYCS Right to Place a Lien on Proprietary Accounts.
In addition to the other remedies described in this Section 8.0 et seq., upon
default by Broker, BNYCS shall have a lien on any of Broker's Proprietary
Accounts and, in the event of any breach of this Agreement by Broker for any
reason, BNYCS may exercise any of the rights of a secured creditor with respect
to such Proprietary Accounts including, without limitation, the forced
liquidation of the Proprietary Account(s) in whole or in part, and may apply the
proceeds of liquidation of any such Proprietary Accounts to the obligations of
Broker hereunder.
9.0 LIABILITY AND INDEMNIFICATION
9.1 Liability of Broker.
Broker agrees to indemnify and hold BNYCS and the Indemnified Parties (as
defined in Section 3.2.2) harmless from and against any and all actions, causes
of action, claims, losses, liabilities, damages or expense (including, but not
limited to, fees and costs of legal counsel including such fees and expenses as
incurred in connection with enforcing this provision) to BNYCS and/or the
Indemnified Parties, as incurred, related to or arising out of this Agreement,
any Account, any transaction in or for any Account, or any act or omission by
Broker, by any Customer or by any third party (other than any service provider
to BNYCS) other than for acts or omissions for which BNYCS shall indemnify
Broker under Section 9.2. Broker hereby agrees and warrants that Broker will
maintain appropriate brokers blanket bond insurance policies covering any and
all acts of Broker's employees, agents and partners adequate to fully protect
and indemnify BNYCS and the Indemnified Parties. This policy shall be obtained
by an insurance broker of BNYCS' choosing. Coverage shall be in an amount agreed
by the parties, but in no event shall it be less than $500,000 per occurrence.
Further, this insurance shall remain in effect while BNYCS acts as Broker's
clearing agent and will include coverage for any claims discovered or made
within ninety (90) days following the Termination Date.
9.2 Liability Of BNYCS.
BNYCS agrees to indemnify and hold Broker harmless from and against all loss,
liability, damage, claim, cost or expense, including, but not limited to, fees
and expenses of legal counsel (including such fees and expenses in connection
with the enforcement of this section) relating to any grossly negligent,
dishonest, fraudulent, or criminal act or omission on the part of BNYCS or any
of its officers, directors or employees with respect to the services provided by
BNYCS under this Agreement. BNYCS shall have no liability to any of Broker's
Customers for any loss suffered by any Customer unless such loss was solely
caused by gross negligence or fraud on the part of BNYCS.
9.3 Defense of Indemnifiable Actions.
If, within 10 days after receiving written notice of any claim, demand, suit,
proceeding, or action with respect to which BNYCS may have any colorable claim
to indemnification under this Agreement, Broker shall fail to institute the
defense of BNYCS in connection with such claim, demand, suit, proceeding, or
action, or if thereafter Broker shall fail diligently to pursue such defense,
BNYCS shall have the right to defend such action or settle such action. The
12
costs and expenses, including attorney's fees, associated with such a defense or
settlement shall be borne by Broker. The exercise of the right to participate in
or assume the responsibility for any such defense shall not limit in any way
BNYCS' rights to indemnification under this Paragraph. The same shall apply to
Broker with respect to actions for which Broker is entitled to indemnification
from BNYCS under Section 9.2.
9.4 Force Majeure.
BNYCS shall not be liable for any loss or harm to Broker, Broker's Customers or
Accounts caused, directly or indirectly, by any government restriction, exchange
or market ruling, suspension of trading, war, strike, catastrophe,
communications network failure, computer systems failure, or other conditions
beyond the control of BNYCS.
10.0 TERM AND TERMINATION OF AGREEMENT
This Agreement shall commence on the date on which it is approved by the NYSE
(the "Commencement Date") and shall continue until terminated as hereinafter
provided.
This Agreement will remain in effect for three years from the Commencement Date
(the "Third Anniversary Date"). This Agreement can be terminated without cause
by either party upon ninety (90) days' written notice at any time. In the event
no written notice of termination is given, this Agreement shall be deemed to
have been renewed for an additional one-year period and may continue to be
renewed for subsequent one-year periods until terminated as provided herein.
10.1 Termination for Cause
Either party may terminate the Agreement forthwith for cause on account of a
default hereunder or as otherwise provided in this Agreement.
Notwithstanding any provision in this Agreement, the following events or
occurrences shall constitute a Special Event of Default under this Agreement:
1. any representation or warranty made by either party hereto
shall prove to be incorrect at any time in any material respect; or
2. a receiver, liquidator, or trustee for either party hereto or
for any property held by either party, is appointed by court order and such
order remains in effect for more than 30 days; or either party is adjudicated
bankrupt or insolvent; or a substantial amount of property of either party is
sequestered by court order and such order remains in effect for more than 30
days; or a petition is filed against either party under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect, and is
not dismissed within 30 days after such filings; or
3. either party hereto files a petition in voluntary bankruptcy
or seeks relief under any provision of any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction, whether now or hereafter in effect, or consents to the filing
of any petition against it under any such law; or
4. either party hereto makes an assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts generally as they
become due, or consents to the appointment of a receiver, trustee or liquidator
of either party, or of any property held by either party; or
5. either party hereto is enjoined, disabled, suspended,
prohibited, or otherwise unable to engage in the securities business as a result
of any administrative or judicial proceeding or action by the SEC, any state
securities law administrator, any national securities exchange, or any
self-regulatory organization having jurisdiction over that party.
Upon the occurrence of any such Special Event of Default, the nondefaulting
party may, at its option, by notice to the defaulting party declare that this
Agreement shall be thereby terminated and such termination shall be effective as
of the date such notice has been communicated to the defaulting party. If Broker
13
defaults, BNYCS shall have sole discretion to determine what orders, if any, it
shall accept for any Account. In such event, BNYCS shall be entitled, upon the
consent of the Customer, to accept instructions directly from the Customer.
Termination of this Agreement however caused shall not release Broker or BNYCS
from any liability or responsibility to the other with respect to transactions
effected prior to the effective date of such termination, whether or not claims
relating to such transactions shall have been made before or after such
termination. Further, BNYCS shall have the right to impose reasonable
limitations upon Broker's activities (to the extent provided in Section 8.0 et
seq. above) during the period between the giving of notice and the transfer of
Broker's Accounts.
Notwithstanding the foregoing, either party may terminate its relationship and
cease doing business with any Account or any of Broker's Customers at any time
(using reasonable judgment) without affecting that party's rights and
obligations hereunder. Each party shall give prompt notification to the other
regarding any such termination of business.
10.2 No Solicitation.
During the term of this Agreement, and for a period of twelve months thereafter,
Broker shall not directly or indirectly solicit, or cause to be solicited, any
employee or registered representative of BNYCS for the purpose of inducing such
person to become employed by or associated with Broker in any capacity
whatsoever including, without limitation, any capacity as a securities
registered representative of Broker. In the event Broker breaches this
subsection, such a breach will be deemed to be a material default by Broker in
the performance of its obligations under this Agreement in accordance with the
provisions of Section 10.1 hereof.
10.3 Termination Fee.
Broker acknowledges that BNYCS will expend substantial resources in initiating
Broker's Customer Accounts pursuant to this Agreement. Accordingly, if this
Agreement is terminated for any reason, Broker shall pay termination fees as
disclosed herein:
(a) as provided in Exhibit 3 PLUS
(b) for any termination Broker shall pay to BNYCS a termination
fee not to exceed $12,000 for system
expenses incurred by BNYCS in
discontinuing the clearing arrangement
hereunder and transferring the Accounts
pursuant to the request of Broker as
provided in Section 11.0 et seq.
Broker shall pay any termination fee within 10 days after Broker receives BNYCS'
statement setting forth in reasonable detail the termination fee.
11.0 TRANSFER OF ACCOUNTS AND CONFIDENTIALITY
11.1 Transfers.
In the event that this Agreement is terminated for any reason, or in any other
event which may require the transfer of Accounts, it shall be Broker's
responsibility to arrange for the transfer of Accounts to another clearing
broker that can accept such Accounts on an automated transfer basis. Broker will
give BNYCS notice (the "Transfer Notice") of (i) the name of the broker or FCM
which will assume responsibility for clearing and carrying the Accounts
transferred, (ii) the date on which such broker will commence such services, and
(iii) the name of an individual within such new clearing broker whom BNYCS can
contact to coordinate the transfer. BNYCS will make every reasonable attempt to
accommodate any transfer instructions but will not be responsible for any
transfers not within the usual capabilities of BNYCS' data processing and
operations systems or for any delays which may be necessary for BNYCS to avoid
disruption of its normal operating capabilities.
In the event that BNYCS is unable for any reason to transfer any Accounts within
the time period contemplated by the termination provisions of Section 10.0 et
seq., or if the receiving firm to which Broker intends to transfer any Accounts
14
cannot arrange with BNYCS the transfer of such Accounts so as to enable such
transfers to comply with Applicable Regulations, BNYCS may impose limitations on
the availability of its services to the Accounts, including the restriction of
orders in such Accounts to liquidating trades only. Any limitations imposed by
BNYCS on Accounts pursuant to this Section 11.1 may continue for the period
required by BNYCS to transfer the Accounts to the receiving firm.
11.2 Confidentiality.
BNYCS will hold the names and addresses of Broker's Customers in confidence and
will not disclose them to any third parties, except to (a) any services
providers that BNYCS may retain in connection with providing the services
contemplated by this Agreement or (b) the extent necessary to comply with court
process, judicial orders or any Applicable Regulation. BNYCS will not use such
information for any purposes not contemplated within this Agreement.
Broker acknowledges that the services offered by BNYCS under this Agreement,
including the systems, software, procedures, facilities, and staff are
proprietary, and represent valuable assets of BNYCS. Accordingly, Broker agrees
that it will not make use of such services for any purpose not specifically
contemplated within this Agreement, nor will it disclose to any third parties
the terms of this Agreement, the services offered hereunder or the assets of
BNYCS, except to its employees on a need-to-know basis and except to the extent
necessary to comply with court process, judicial orders or any Applicable
Regulation.
11.2.1 Breach of Confidentiality.
The parties agree that monetary damages will not be a sufficient remedy to
compensate the non-breaching party in the event of a breach by either party of
the provisions of Section 11.2. Accordingly, the parties agree that the
non-breaching party may seek and obtain injunctive relief from any court of
competent jurisdiction to enforce the confidentiality provisions set forth in
Section 11.2 only, pending arbitration, notwithstanding the arbitration
provisions of Section 13.1 and the rules of any SROs.
12.0 THIRD-PARTY RELATIONS
12.1 Disclosure Of Relationship With BNYCS.
Broker shall not hold itself out or represent to any third party, including
Customers, that it is affiliated with or is the agent of BNYCS. Notwithstanding
the above, Broker may specifically represent that "customer accounts are cleared
and carried by BNYCS." Any advertisement of Broker and its services that makes
reference to BNYCS shall be published only with BNYCS' written approval.
12.2 Non-Exclusivity.
This Agreement shall cover only the types of services set forth herein and is in
no way intended nor shall it be construed to bestow upon Broker any special
treatment regarding any other arrangements, agreements or understandings that
presently exist or which may hereafter exist between the Broker and BNYCS or any
affiliate of BNYCS. Broker shall be under no obligation whatsoever to deal with
BNYCS or any of its subsidiaries or any companies controlled directly or
indirectly by or affiliated with BNYCS, in any capacity other than as set forth
in this Agreement. Similarly, BNYCS shall be under no obligation whatsoever to
deal with Broker or any of its affiliates in any capacity other than as set
forth in this Agreement.
In the event that BNYCS makes available to Broker other services and Broker in
turn makes such services available to Customers, Broker shall be solely
responsible for the provision of such services to Customers and shall be solely
liable to Customers in connection with the provision of such services.
12.3 Use of Third Party Services.
BNYCS 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
securities depositories, such as DTC, or proxy mailing services) assigned to
BNYCS under this Agreement. If any such service bureau fails to perform an
15
assigned function accurately, in accordance with specifications, or within the
customary time periods, BNYCS shall cause the service bureau to correct any
error in its next regularly scheduled processing operation and to delivery any
overdue work as soon as reasonably practicable. Except as stated in this
subparagraph, BNYCS shall not be responsible for any losses, damages, liability,
or expenses claimed by Broker or its customers arising from any such failure
beyond the amount of such losses, damages or expenses which BNYCS is able to
recover pursuant to the term of its agreement with such service bureau.
12.4 Prime Broker Notification.
Where Broker acts as an executing broker for Accounts that prime broker their
securities away from BNYCS (a "Prime Brokerage Customer"), Broker shall notify
BNYCS with respect to each account for which Broker intends to act as an
executing broker and Broker shall be solely responsible for conducting its own
credit review with respect to each such Prime Brokerage Customer. Broker shall
promptly notify BNYCS, but in no event later than 5:00 p.m. Illinois time of the
trade date, in a mutually acceptable fashion, of such trades in sufficient
detail for BNYCS to be able to report and transfer any trade executed by Broker
on behalf of a Prime Brokerage Customer to the relevant prime broker. Broker
understands and agrees that if the prime broker shall disaffirm or DK any trade
executed by Broker on behalf of a Prime Brokerage Customer, Broker shall, if it
has not already done so, open a margin account for such Prime Brokerage customer
in its range of accounts and shall transfer or deliver the trade to such margin
account for the risk and expense of BNYCS to the same extent as for any account
introduced by Broker pursuant to this Agreement. Broker understands and agrees
that for certain Prime Brokerage Customers, BNYCS acts as both the clearing
broker and the prime broker (the "Prime Broker"). BNYCS as the Prime Broker will
not disaffirm or DK a transaction for Broker's Prime Brokerage Customers but
will notify Broker that a problem exists and, as permitted under the SEC Letter,
that it is unable to settle the trade. BNYCS as the clearing broker will request
that Broker open a margin account for such Prime Brokerage Customer in Broker's
range of accounts and transfer or deliver the trade to such margin account for
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
transactions for its Prime Brokerage Customers shall be conducted in accordance
with the requirements of any Applicable Regulations, SEC "no action" or
interpretative letters or written policies, and rules or regulations governing
prime brokerage transactions.
12.5 Secondary Brokers.
Broker shall not introduce any Customers' transactions for clearance or other
services to BNYCS where such transactions have been also executed by any other
broker-dealer registered as such with the SEC ("Secondary") or where the
Secondary is sharing in any fees or commissions with Broker relating to said
transactions, without the prior express written approval of BNYCS, which
approval BNYCS is under no obligation to render.
13.0 MISCELLANEOUS
13.1 Arbitration.
Any dispute between Broker and BNYCS (including any Indemnified Party) which
cannot be amicably resolved shall be submitted to, and resolved by, binding
arbitration pursuant to the arbitration rules of the NASD. The situs of any such
arbitration hearing shall be New York, New York.
13.2 Provisional Judicial Remedies.
Notwithstanding the provisions of Paragraph 13.1 that any dispute or controversy
between the parties relating to or arising out of this Agreement shall be
referred to and settled by arbitration, in connection with any breach by Broker
of this provision, BNYCS may at any time prior to the initial arbitration
hearing pertaining to such dispute or controversy, by application to the United
States District Court for the Eastern District of Wisconsin or a State Court
sitting in Milwaukee, Wisconsin, seek any temporary or provisional relief or
remedy ("provisional remedy") provided for by the laws of the United States of
America or the laws of the State of Wisconsin as would be available in an action
based upon such dispute or controversy in the absence of an agreement to
arbitrate. The parties acknowledge and agree that it is their intention to have
any such application for a provisional remedy decided by the court to which it
is made and that such application shall not be referred to or settled by
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arbitration. No such application to either said court for a provisional remedy,
nor any act or conduct by either party in furtherance of or in opposition to
such application, shall constitute a relinquishment or waiver of any right to
have the underlying dispute or controversy with respect to which such
application is made settled by arbitration.
13.3 Applicable Law.
This Agreement and the respective rights and obligations of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of New York, exclusive of its conflict of laws provisions.
13.4 Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and to their respective successors and assigns. Broker may not assign
any of its rights or obligations hereunder without the prior written consent of
BNYCS.
13.5 Amendments.
This Agreement represents the entire Agreement between the parties with respect
to the subject matter contained herein and supersedes any prior agreements on
the same subject matter. This Agreement may not be amended except by a writing
signed by both parties hereto.
13.6 Training Expenses.
BNYCS will provide such on-site training or other assistance it deems necessary
for the effective use of the BNYCS system. Broker shall be responsible for the
prompt payment of all out-of-pocket expenses of BNYCS incurred in connection
with the training of Broker's personnel, including but not limited to travel,
lodging, meals, incidentals, and amounts paid by BNYCS to third parties under
contract to perform such services.
13.7 Severability.
If any provision or condition 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.
13.8 Telephone Conversations.
For the protection of both Broker and BNYCS and as a tool to correct
misunderstandings, Broker hereby authorizes BNYCS, at BNYCS' sole discretion and
without prior notice to Broker, to monitor and/or record any and all telephone
conversations between BNYCS and Broker's employees or agents. This authorization
shall not constitute a right of Broker to receive a copy of any recorded
telephone conversation. Broker acknowledges that BNYCS may determine not to make
or keep such recordings and such determination shall not in any way affect any
party's rights.
13.9 Notices.
Any notice or request required or permitted to be given under this Agreement
shall be sufficient if in writing and sent by hand or by certified mail, with
postage prepaid, return receipt requested, or any reputable overnight carrier
that provides proof of receipt, to the parties at the following addresses:
If to BNYCS: If to Broker:
BNY Clearing Services, LLC Xxxxxx Securities, Inc.
000 Xxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Chief Financial Officer Attention: Xxxxxxx X. Xxxxxxxx,
President
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Notwithstanding the foregoing, notices which are delivered by hand prior to 5:00
p.m. local time shall be deemed delivered on the date of actual delivery. Hand
delivery after 5:00 p.m. local time shall be deemed delivered on the next
business day. Notices delivered by mail shall be deemed delivered on the fifth
business day after the date of mailing.
Either party may designate a new address and/or contact person by giving notice
thereof to the other party by the methods provided above.
IN WITNESS WHEREOF, the parties have executed this Fully Disclosed Clearing
Agreement as of the date first written above.
AGREED:
BNY Clearing Services, LLC Xxxxxx Securities, Inc.
/s/ /s/
Title:__________________________ By:____________________________
Title: Chief Executive Officer Title:Chief Executive Officer
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