EXHIBIT 2
PROFESSIONAL ACCOUNT AGREEMENT
THIS AGREEMENT (this "Agreement") sets forth the terms and conditions on
which subsidiaries of THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC. will open and maintain
account(s) in your name and otherwise transact business with you. If these
accounts are cash accounts and you have fully paid for all securities
therein, the provisions of paragraphs 17 and 18 shall not bind you unless
you enter into a margin transaction.
1. PARTIES. You hereby agree that the parties to this Agreement shall
consist of you and each and every subsidiary of THE BEAR ▇▇▇▇▇▇▇ COMPANIES
INC. whether now existing or hereafter created (each such subsidiary being
referred to hereinafter as a "Bear ▇▇▇▇▇▇▇ entity" and all such subsidiaries
being collectively referred to hereinafter as "Bear ▇▇▇▇▇▇▇").
2. APPLICABLE LAWS, RULES AND REGULATIONS. All transactions shall be
subject to the applicable laws, rules and regulations of all federal, state
and self-regulatory authorities, including, but not limited to, the rules and
regulations of the Board of Governors of the Federal Reserve System and
the constitution, rules and customs of the exchange or market (and clearing
house) where such transactions are executed.
3. SECURITY INTEREST AND LIEN; REGISTRATION OF SECURITIES. As security
for the payment and performance of all of your obligations and liabilities
from time to time outstanding to any Bear ▇▇▇▇▇▇▇ entity, whether under this
Agreement or otherwise, each Bear ▇▇▇▇▇▇▇ entity shall have a continuing first
lien and security interest in (i) all property in which you now have or
hereafter acquire an interest which is now or hereafter held by or through any
Bear ▇▇▇▇▇▇▇ entity, including, but not limited to, any and all accounts,
instruments, documents, contract rights, commodities and commodity futures
contracts, commercial paper and other securities, monies, deposit accounts and
general intangibles, and (ii) any and all rights, claims or causes of action
you may now or hereafter have against any Bear ▇▇▇▇▇▇▇ entity. You hereby
acknowledge and agree that all such property of yours held by or through any
Bear ▇▇▇▇▇▇▇ entity is held as collateral by such Bear ▇▇▇▇▇▇▇ entity as agent
and bailee for itself and all other Bear ▇▇▇▇▇▇▇ entities. You represent
that all of the above-described collateral shall at all times be free and
clear of all liens, claims and encumbrances of any nature other than the
security interest created hereby. In addition, in order to satisfy any of
your outstanding liabilities or obligations to any Bear ▇▇▇▇▇▇▇ entity, Bear
▇▇▇▇▇▇▇ may, to the fullest extent permitted by law, at any time in its
discretion and without prior notice to you, use, apply or transfer any and
all securities or other property (including, without limitation, fully-paid
securities and cash). You hereby agree that, except as otherwise specifically
agreed in writing, Bear ▇▇▇▇▇▇▇ may register and hold the securities and other
property in your accounts in its name or the name of its designee.
4. DEPOSITS ON TRANSACTIONS. Whenever Bear ▇▇▇▇▇▇▇, in its sole discretion,
considers it necessary in order to assure the due performance of your open
contractual commitments, it may require you, and you hereby agree, to deposit
cash or collateral immediately in your account(s) prior to any applicable
settlement date.
5. BREACH, BANKRUPTCY OR DEFAULT. Any breach of or default under this
Agreement or any other agreement you may have with any Bear ▇▇▇▇▇▇▇ entity,
whether heretofore or hereafter entered into, or the filing of a petition or
other commencement of a proceeding in bankruptcy or insolvency, or the
appointment of a receiver, by or against you or any guarantor, co-signer or
other party liable on or providing security for your obligations to any Bear
▇▇▇▇▇▇▇ entity, or the levy of an attachment against your or any such other
party's account(s) with any Bear ▇▇▇▇▇▇▇ entity, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as
determined by Bear ▇▇▇▇▇▇▇ in its sole discretion (including, without
limitation, any indication of your refusal or inability to satisfy promptly
any margin call or other deposit requirement hereunder), shall constitute, at
Bear ▇▇▇▇▇▇▇' election, a default by you under any or all agreements you may
then have with any Bear ▇▇▇▇▇▇▇ entity, whether heretofore or hereafter
entered into. In the event of any such default, each Bear ▇▇▇▇▇▇▇ entity
shall have all of the rights of a secured party upon default under the New
York Uniform Commercial Code and other applicable laws, rules and regulations,
including, without limitation, the right without prior notice to you, to sell
any and all property in which you have an interest held by or through any Bear
▇▇▇▇▇▇▇ entity, to buy any or all property which may have been sold short, to
exercise any and all options and other rights to accelerate, cancel,
terminate, liquidate, close out and net the settlement payments and/or
delivery obligations under any or all outstanding transactions and/or to
purchase or sell any other securities or property to offset market risk, and
to offset any indebtedness you may have (either individually or jointly with
others), after which you shall be liable to Bear ▇▇▇▇▇▇▇ for any remaining
deficiency, loss, costs or expenses incurred or sustained by Bear ▇▇▇▇▇▇▇
in connection therewith. Such purchases and/or sales may be effected publicly
or privately without notice or advertisement in such manner as Bear ▇▇▇▇▇▇▇ may
in its sole discretion determine. At any such sale or purchase, any Bear
▇▇▇▇▇▇▇ entity may purchase or sell the property free of any right of
redemption. In addition, each Bear ▇▇▇▇▇▇▇ entity shall have the right, at
any time and from time to time, to set off and otherwise apply any and all
amounts owing by such Bear ▇▇▇▇▇▇▇ entity to you or for your account or credit
against any and all amounts now or hereafter owing by you to any Bear ▇▇▇▇▇▇▇
entity (including, without limitation, any indebtedness in your accounts),
whether matured or unmatured, fixed, contingent or otherwise, and
irrespective of whether any Bear ▇▇▇▇▇▇▇ entity shall have made any demand
therefor. Bear ▇▇▇▇▇▇▇ agrees to notify you of any such set-off and
application; provided, however, that the failure to give such notice shall
not affect the validity of any such set-off and application.
6. EXECUTION FEES AND SERVICE CHARGES. You understand that your account(s)
will be charged brokerage commissions or ▇▇▇▇-ups/▇▇▇▇-▇▇▇▇▇ in connection with
the execution of transactions ("Execution Fees") and may be charged certain
other fees for custody and other services furnished to you ("Service Fees").
All such fees shall be determined by Bear ▇▇▇▇▇▇▇ unless your account(s) is
(are) introduced to Bear ▇▇▇▇▇▇▇ by another broker, in which case all
Execution Fees and certain Service Fees shall be determined by such other
broker. You further understand that Execution Fees may be changed from time
to time without prior notice to you and Service Fees may be changed from time
to time upon thirty days' prior written notice to you, and, in each case, you
agree to be bound thereby.
7. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the execution
of orders and other activity in your account(s) which have been provided or
made available to you by 10:00 A.M. shall be conclusive if not objected to by
12:00 NOON (Eastern time) on that day or, if such reports are provided or
made available to you after 10:00 A.M., then no later than two hours after
such reports have been provided or made available to you; provided, however,
that if you are a registered options trader, then by the market opening on
the day following trade date. Information contained in monthly statements
of account, to the extent not included in an activity report, shall be
conclusive if not objected to within fifteen days after such statements have
been provided or made available to you.
8. DEBIT BALANCES; TRUTH-IN-LENDING. You hereby acknowledge receipt of
Bear ▇▇▇▇▇▇▇' Truth-In-Lending disclosure statement. You understand that
interest will be charged on any debit balances in your account(s) in
accordance with the methods described in such statement or in any amendment or
revision thereto which may be provided to you. Any debit balance which is not
paid at the close of an interest period will be added to the opening balance
for the next interest period.
9. CLEARANCE ACCOUNTS. If any of your accounts is carried by any Bear
▇▇▇▇▇▇▇ entity as clearing agent for your broker, unless such Bear ▇▇▇▇▇▇▇
entity receives from you prior written notice to the contrary, it may accept
from such introducing broker, without any inquiry or investigation, (a) orders
for the purchase or sale of securities and other property in your account(s),
on margin or otherwise, and (b) any other instructions concerning your
account(s) or the property therein. You understand and agree that Bear
▇▇▇▇▇▇▇ shall have no responsibility or liability to you for any acts or
omissions of your broker, its officers, employees or agents. You agree that
your broker and its employees are third-party beneficiaries of this Agreement,
and that the terms and conditions hereof, including the arbitration
provisions, shall be applicable to all matters between or among any of you,
your broker and its employees and Bear ▇▇▇▇▇▇▇ and its employees.
10. COLLECTION AND OTHER ACCOUNT-RELATED COSTS. You hereby agree to pay,
on demand, all reasonable direct and indirect costs, liabilities and damages
incurred by Bear ▇▇▇▇▇▇▇ (including, without limitation, costs of collection,
attorneys' fees, court costs and other expenses) in connection with (i)
enforcing its rights hereunder, (ii) any investigation, litigation or
proceeding involving your account or any property therein (including, without
limitation, claims to such property by third parties), (iii) your use of or
access to any Bear ▇▇▇▇▇▇▇ or third-party system, or (iv) Bear ▇▇▇▇▇▇▇ acting
in reliance upon your instructions or, if your account is introduced to Bear
▇▇▇▇▇▇▇ by another broker, the instructions of such other broker. In each
case and whether or not demand has been made therefor, you hereby authorize
Bear ▇▇▇▇▇▇▇ to charge your account(s) for any and all such costs, including,
without limitation, costs incurred in connection with the liquidation of any
property held in your account(s).
11. IMPARTIAL LOTTERY ALLOCATION. You agree that, in the event Bear
▇▇▇▇▇▇▇ holds on your behalf securities in its name, in the name of its
designee or in bearer form which are called in part, you will participate
in the impartial lottery allocation system for such called securities in
accordance with the rules of the New York Stock Exchange, Inc. or any other
appropriate self-regulatory organization. When any such call is favorable,
no allocation will be made to any account in which, to the knowledge of Bear
▇▇▇▇▇▇▇, any officer, director or employee of Bear ▇▇▇▇▇▇▇ has any financial
interest until all other customers have been satisfied on an impartial
lottery basis.
12. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear ▇▇▇▇▇▇▇' failure to
insist at any time upon strict compliance with this Agreement or with any of
the terms hereof nor any continued course of such conduct on its part shall
constitute or be considered a waiver by Bear ▇▇▇▇▇▇▇ of any of its rights or
privileges hereunder. Any assignment of your rights and obligations
hereunder or your interest in any property held by or through Bear ▇▇▇▇▇▇▇
without obtaining the prior written consent of an authorized representative
of Bear ▇▇▇▇▇▇▇ shall be null and void. Each Bear ▇▇▇▇▇▇▇ entity reserves
the right to assign any of its rights or obligations hereunder to any other
Bear ▇▇▇▇▇▇▇ entity without prior notice to you. Notices and other
communications (including, without limitation, margin calls) delivered,
faxed, sent by express delivery service or mailed to the address provided by
you shall, until Bear ▇▇▇▇▇▇▇ has received notice in writing of a different
address, be deemed to have been personally delivered to you. Margin calls
may also be communicated orally, without subsequent written confirmation.
13. FREE CREDIT BALANCES. You hereby authorize Bear ▇▇▇▇▇▇▇ to use any free
credit balance awaiting investment or reinvestment in your account(s) in
accordance with all applicable rules and regulations and to pay interest
thereon at such rate or rates and under such conditions as are established
from time to time by Bear ▇▇▇▇▇▇▇ for such account(s) and for the amounts of
cash so used.
14. RESTRICTIONS ON ACCOUNT. You understand that Bear ▇▇▇▇▇▇▇, in its
sole discretion, may restrict or prohibit trading of securities or other
property in your account(s) and may terminate your account(s), and you shall
nevertheless remain liable for all of your obligations to Bear ▇▇▇▇▇▇▇ under
this Agreement or otherwise.
15. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear ▇▇▇▇▇▇▇ and,
if applicable, your introducing broker, in its or their discretion, at any
time and from time to time, to make or obtain reports concerning your credit
standing and business conduct. You may make a written request for a
description of the nature and scope of the reports made or obtained by Bear
▇▇▇▇▇▇▇ and the same will be provided to you within a reasonable period
of time.
16. SHORT AND LONG SALES. In placing any sell order for a short account,
you will designate the order as such and hereby authorize Bear ▇▇▇▇▇▇▇ to ▇▇▇▇
the order as being "short." In placing any sell order for a long account,
you will designate the order as such and hereby authorize Bear ▇▇▇▇▇▇▇ to ▇▇▇▇
the order as being "long." The designation of a sell order as being for a
long account shall constitute a representation that you own the security with
respect to which the order has been placed, that such security is not
restricted under Rules 144 and 145 under the Securities Act of 1933 or any
other applicable law, rule or regulation and, as such, may be sold without
restriction in the open market and that, if Bear ▇▇▇▇▇▇▇ does not have the
security in its possession at the time you place the order, you shall deliver
the security by settlement date in good deliverable form or pay to
Bear ▇▇▇▇▇▇▇ any losses and expenses it may incur or sustain as a result of
your failure to make delivery on a timely basis.
17. MARGIN AND OTHER COLLATERAL REQUIREMENTS. You hereby agree to deposit
and maintain such margin in your margin accounts, if any, as Bear ▇▇▇▇▇▇▇ may
in its sole discretion require, and you agree to pay forthwith on demand any
debit balance owing with respect to any of your margin accounts. In addition,
you further agree to deposit promptly and maintain such other collateral with
Bear ▇▇▇▇▇▇▇ as is required by any other agreement or open transaction you may
have with any Bear ▇▇▇▇▇▇▇ entity. Upon your failure to make any such payment
or deposit, or if at any time Bear ▇▇▇▇▇▇▇, in its sole discretion, deems it
necessary for its protection whether with or without prior demand, call or
notice, Bear ▇▇▇▇▇▇▇ shall be entitled to exercise all rights and remedies
provided in paragraphs 3 and 29 hereof. No demands, calls, tenders or notices
that Bear ▇▇▇▇▇▇▇ may have made or given in the past in any one or more
instances shall invalidate your waiver of the requirement to make or give the
same in the future. You further acknowledge and agree that any positions in
your margin account(s) shall be deemed "securities contracts" without the
meaning of Sections 555 and 741(7) of the U.S. Bankruptcy Code and any
successors thereto. Unless you advise Bear ▇▇▇▇▇▇▇ in writing to the
contrary, you represent that you are not an affiliate (as defined in Rule
144(a)(1) under the Securities Act of 1933) of the issuer of any security
held in any of your accounts.
18. CONSENT TO LOAN OR PLEDGE OF SECURITIES IN MARGIN ACCOUNTS. Within
the limits of applicable law and regulations, you hereby authorize Bear
▇▇▇▇▇▇▇ to lend either to itself or to others any securities held by Bear
▇▇▇▇▇▇▇ in any of your margin accounts, to convey therewith all attendant
rights of ownership (including voting rights) and to use all such property
as collateral for its general loans. Any such property, together with all
attendant rights of ownership, may be pledged, repledged, hypothecated or
rehypothecated either separately or in common with other property for any
amounts due to Bear ▇▇▇▇▇▇▇ thereon or for a greater sum, and Bear ▇▇▇▇▇▇▇
shall have no obligation to retain a like amount of similar property in its
possession and control. You hereby acknowledge that, as a result of such
activities, Bear ▇▇▇▇▇▇▇ may receive and retain certain benefits to which
you will not be entitled. In certain circumstances, such loans may limit,
in whole or in part, your ability to exercise voting and other attendant
rights of ownership with respect to the loaned or pledged securities.
19. GIVE-UPS; FREE DELIVERIES. In the event (i) your orders are not
executed by Bear ▇▇▇▇▇▇▇ and you give up Bear ▇▇▇▇▇▇▇' name for clearance
and/or settlement, or (ii) you require Bear ▇▇▇▇▇▇▇ to make a free delivery
of cash or securities in connection with the settlement of such orders, the
following terms and conditions shall apply:
a. You agree that you will only execute bona-fide orders, and if
required for settlement, you will request a free delivery of cash or
securities only when you have reasonable grounds to believe that the
contra-party and the broker who executed your order have the financial
capability to complete any contemplated transaction;
b. Bear ▇▇▇▇▇▇▇ reserves the right at any time to place a limit (of
either dollars or number of securities) on the size of transactions that
Bear ▇▇▇▇▇▇▇ will accept for clearance. If, after you have received
notice of such limitation, you execute an order in excess of the limit
established by Bear ▇▇▇▇▇▇▇, Bear ▇▇▇▇▇▇▇ shall have the right,
exercisable in its sole discretion, to decline to accept the transaction for
clearance and settlement. In the event any claim is asserted against Bear
▇▇▇▇▇▇▇ by the broker who executed your order because of such action by
Bear ▇▇▇▇▇▇▇, you agree to indemnify and hold Bear ▇▇▇▇▇▇▇ harmless from any
loss, liability, damage, claim, cost or expense (including, but not limited
to, fees and expenses of legal counsel) arising directly or indirectly
therefrom; and
c. Bear ▇▇▇▇▇▇▇ will, on a best-efforts basis, attempt to clear such
transactions within a reasonable period of time and utilize the same
procedures it utilizes when clearing transactions executed by it.
Notwithstanding Paragraph 7 or any other provision herein to the contrary,
Bear ▇▇▇▇▇▇▇ shall have the right but not the obligation to take action at
any time in its sole discretion to correct errors in such transactions. You
hereby agree to release, indemnify and hold harmless Bear ▇▇▇▇▇▇▇ from all
loss, liability, damage, claim, cost or expense (including, but not limited
to, fees and expenses of legal counsel) arising out of or incurred in
connection with your failure or the failure of the broker who executed your
order to settle the transaction, to return any free delivery upon demand, or
to object to any information provided or made available to you under
Paragraph 7 hereof, and Bear ▇▇▇▇▇▇▇ shall have no liability whatsoever to
you in any such circumstance.
20. PRIME BROKERAGE SERVICES.
a. Prior to the commencement of any prime brokerage activity, Bear
▇▇▇▇▇▇▇ will enter into an agreement with your executing broker(s) that will
set forth the terms and conditions under which your executing broker(s) will
be authorized to accept orders from you for settlement by Bear ▇▇▇▇▇▇▇ (the
"Prime Brokerage Agreement"). Bear ▇▇▇▇▇▇▇ will accept for clearance and
settlement trades executed on your behalf by such executing broker(s) as you
may designate from time to time. On the day following each such transaction,
Bear ▇▇▇▇▇▇▇ will send you a notification of each trade placed with your
executing broker for settlement by us based upon the information provided by
you or your agent.
b. Bear ▇▇▇▇▇▇▇ shall be responsible for settling trades executed on
your behalf by your executing broker(s) and reported to Bear ▇▇▇▇▇▇▇ by you
and your executing broker(s), provided that you have reported to Bear ▇▇▇▇▇▇▇
on trade date, by the time designated to you by Bear ▇▇▇▇▇▇▇, all the details
of such trades including, but not limited to, the contract amount, the security
involved, the number of shares or the number of units and whether the
transaction was a long or short sale or a purchase, and further provided,
that Bear ▇▇▇▇▇▇▇ has either affirmed or not "OK'd" ("indicated it does not
know") and has not subsequently disaffirmed such trades. In the event that
Bear ▇▇▇▇▇▇▇ determines not to settle a trade, Bear ▇▇▇▇▇▇▇ shall not have
settlement responsibility for such trade and shall, instead, send you a
cancellation notification to offset the notification sent to you under
subparagraph (a) of this Paragraph. You shall be solely responsible and
liable to your executing broker(s) for settling such trade. In addition,
Bear ▇▇▇▇▇▇▇ may be required to cease providing prime brokerage services to
you in accordance with the Prime Brokerage Agreement.
c. In the event of (i) the filing of a petition or other proceeding in
bankruptcy, insolvency or for the appointment of a receiver by or against your
executing broker, (ii) the termination of your executing broker's registration
and the cessation of business by it as a broker-dealer, or (iii) your
executing broker's failure, inability or refusal, for any reason whatsoever or
for no reason at all, to settle a trade, if Bear ▇▇▇▇▇▇▇ agrees to settle any
trades executed on your behalf by such executing broker, regardless whether
Bear ▇▇▇▇▇▇▇ either affirmed or did not OK and did not disaffirm such trades,
you shall be solely responsible and liable to Bear ▇▇▇▇▇▇▇ for any losses
arising out of or incurred in connection with Bear ▇▇▇▇▇▇▇' agreement to
settle such trades.
d. You shall maintain in your account with Bear ▇▇▇▇▇▇▇ such minimum
net equity in cash or securities as Bear ▇▇▇▇▇▇▇, in its sole discretion, may
require, from time to time (the "Bear ▇▇▇▇▇▇▇ Net Equity Requirements"),
which shall in no event be less than the minimum net equity required by the
SEC Letter, as defined in subparagraph (g) of this Paragraph (the "SEC Net
Equity Requirements"). In the event your account falls below the SEC Net
Equity Requirements, you hereby authorize Bear ▇▇▇▇▇▇▇ to notify promptly
all executing brokers with whom it has a Prime Brokerage Agreement on your
behalf of such event. Moreover, if you fail to restore your account to
compliance with the SEC Net Equity Requirements within the time specified in
the SEC Letter, Bear ▇▇▇▇▇▇▇ shall (i) notify all such executing brokers
that Bear ▇▇▇▇▇▇▇ is no longer acting as your prime broker and (ii) either
not affirm or "OK" ("indicate that it does not know") all prime brokerage
transactions on your behalf with trade date after the business day on which
such notification was sent. In the event either (i) your account falls below
the Bear ▇▇▇▇▇▇▇ Net Equity Requirements, (ii) Bear ▇▇▇▇▇▇▇ determines that
there would not be enough cash in your account to settle such transactions or
that a maintenance margin call may be required as a result of settling such
transactions, or (iii) Bear ▇▇▇▇▇▇▇ determines that the continuation of
prime brokerage services to you presents an unacceptable risk to Bear ▇▇▇▇▇▇▇
taking into consideration all the facts and circumstances, Bear ▇▇▇▇▇▇▇ may
disaffirm all your prime brokerage transactions and/or cease to act as your
prime broker.
e. If you have instructed your executing broker(s) to send confirmations
to you in care of Bear ▇▇▇▇▇▇▇, as your prime broker, the confirmation sent by
such executing broker is available to you promptly from Bear ▇▇▇▇▇▇▇, at no
additional charge.
f. If your account is managed on a discretionary basis, you hereby
acknowledge that your prime brokerage transactions may be aggregated with
those of other accounts of your advisor, according to your advisor's
instructions, for execution by your executing broker(s) in a single bulk
trade and for settlement in bulk by Bear ▇▇▇▇▇▇▇. You hereby authorize Bear
▇▇▇▇▇▇▇ to disclose your name, address and tax I.D. number to your executing
broker(s). In the event any trade is disaffirmed, as soon as practicable
thereafter, Bear ▇▇▇▇▇▇▇ shall supply your executing broker(s) with the
allocation of the bulk trade, based upon information provided by your advisor.
g. The prime brokerage services hereunder shall be provided in a manner
not inconsistent with the no-action letter dated January 25, 1994 issued by
the Division of Market Regulation of the Securities and Exchange Commission
(the "SEC Letter"), and any supplements or amendments thereto.
21. LEGALLY BINDING. You hereby agree that this Agreement and all of the
terms hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal representatives, successors and assigns. You
further agree that all purchases and sales shall be for your account(s) in
accordance with your oral or written instructions. You hereby waive any and
all defenses that any such oral instruction was not in writing as may be
required by any applicable law, rule or regulation.
22. AMENDMENT. You agree that Bear ▇▇▇▇▇▇▇ may modify the terms of this
Agreement at any time upon prior written notice to you. By continuing to
accept services from Bear ▇▇▇▇▇▇▇ thereafter, you will have indicated your
acceptance of any such modification. If you do not accept such modification,
you must notify Bear ▇▇▇▇▇▇▇ in writing; your account may then be terminated
by Bear ▇▇▇▇▇▇▇, after which you will remain liable to Bear ▇▇▇▇▇▇▇ for all
outstanding liabilities and obligations. Otherwise, this Agreement may not
be modified absent a written instrument signed by an authorized
representative of Bear ▇▇▇▇▇▇▇.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE CONTRACTUAL AND ALL
OTHER RIGHTS AND LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF
LAW PRINCIPLES THEREOF.
24. ARBITRATION. You agree that controversies arising between you and
your introducing broker and/or Bear ▇▇▇▇▇▇▇, and any of your or their
control persons, predecessors, subsidiaries, affiliates, successors, assigns
and employees, shall be determined by arbitration.
With respect to the resolution of any such controversy, you further
acknowledge that:
- Arbitration is final and binding on the parties.
- Except as otherwise provided herein, the parties are waiving
their right to seek remedies in court, including the right to jury trial.
- Pre-arbitration discovery is generally more limited than and
different from court proceedings.
- 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.
- The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
- 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.
- Any arbitration under this Agreement shall be held at the
Facilities and before an arbitration panel appointed by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. or the National
Association of Securities Dealers, Inc., or, if the transaction which
gives rise to such controversy is effected in another United States
market which provides arbitration facilities, before such other
facilities. You may elect one of the foregoing forums for arbitration,
but if you fail to make such election by registered mail or telegram
addressed to Bear ▇▇▇▇▇▇▇ Securities Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Legal Officer (or any other address
of which you are advised in writing), before the expiration of ten days
after receipt of a written request from Bear ▇▇▇▇▇▇▇ to make such
election, then Bear ▇▇▇▇▇▇▇ may make such election. For any arbitration
solely between you and a broker for which Bear ▇▇▇▇▇▇▇ acts as clearing
agent, such election shall be made by registered mail to such broker at
its principal place of business. The award of the arbitrators, or of a
majority of them, shall be final and judgment upon the award rendered
may be entered in any court, state or federal, having jurisdiction.
25. SEVERABILITY. If and to the extent any term or provision herein is or
should become invalid or unenforceable under any present or future law, rule or
regulation of any sovereign government or regulatory body having jurisdiction
over the subject matter of this Agreement, then (i) the remaining terms and
provisions hereof shall be unimpaired and remain in full force and effect and
(ii) the invalid or unenforceable provision or term shall be replaced by a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of such invalid or unenforceable term or provision.
26. EXTRAORDINARY EVENTS. Bear ▇▇▇▇▇▇▇ shall not be liable for losses
caused directly or indirectly by government restrictions, exchange or market
rulings, suspension of trading, war, strikes or other conditions beyond its
control.
27. HEADINGS. The headings of the provisions hereof are for ease of
reference only and shall not affect the interpretation or application of
this Agreement or in any way modify or qualify any of the rights provided
for hereunder.
28. TELEPHONE CONVERSATIONS. For the protection of both you and Bear
▇▇▇▇▇▇▇, and as a tool to correct misunderstandings, you hereby authorize Bear
▇▇▇▇▇▇▇, at Bear ▇▇▇▇▇▇▇' discretion and without prior notice to you, to
monitor and/or record any or all telephone conversations or electronic
communications between you and Bear ▇▇▇▇▇▇▇ or any of Bear ▇▇▇▇▇▇▇' employees
or agents. You acknowledge that Bear ▇▇▇▇▇▇▇ may determine not to make or
keep any of such recordings and that such determination shall not in any way
affect any party's rights.
29. CUMULATIVE RIGHTS; ENTIRE AGREEMENT. The rights of each Bear
▇▇▇▇▇▇▇ entity set forth in this Agreement and in each other agreement you
may have with any Bear ▇▇▇▇▇▇▇ entity, whether heretofore or hereafter
entered into, are cumulative and in addition to any other rights and
remedies that any Bear ▇▇▇▇▇▇▇ entity may have and shall supersede any
limitation on or any requirement for the exercise of such rights and
remedies that is inconsistent with the terms of this or any other such
agreement (including, without limitation, any requirement that time
elapse or notice or demand be given prior to the exercise of remedies).
The provisions of this Agreement shall supersede any inconsistent provisions
of any other agreement heretofore or hereafter entered into by you and any
Bear ▇▇▇▇▇▇▇ entity to the extent that the subject matter thereof is dealt
with in this Agreement and the provisions of such other agreement would deny
any Bear ▇▇▇▇▇▇▇ entity any benefit or protection afforded to it under this
Agreement. You hereby appoint Bear ▇▇▇▇▇▇▇ as your agent and attorney-in-
fact to take any action (including, but not limited to, the filing of
financing statements) necessary or desirable to perfect and protect the
security interest granted in Paragraph 3 hereof or to otherwise accomplish
the purposes of this Agreement. Except as set forth above, this Agreement
represents the entire agreement and understanding between you and Bear
▇▇▇▇▇▇▇ concerning the subject matter hereof.
30. CAPACITY TO CONTRACT; AFFILIATIONS. You represent that you are of
legal age and that, unless you have notified Bear ▇▇▇▇▇▇▇ to the contrary,
neither you nor any member of your immediate family is (i) an employee or
member of any exchange, (ii) an employee or member of the National Association
of Securities Dealers, Inc., (iii) an individual or an employee of any corpora-
tion or firm engaged in the business of dealing, as broker or principal, in
securities, options or futures, or (iv) an employee of any bank, trust company
or insurance company. If the undersigned is signing on behalf of others, the
undersigned hereby represents that the person(s) or entity(ies) on whose behalf
it is signing is/are authorized to enter into this Agreement and that the
undersigned is duly authorized to sign this Agreement and make the
representations contained herein in the name and on behalf of such other
person(s) or entity(ies). You hereby authorize Bear ▇▇▇▇▇▇▇ to accept
faxed copies of this or any other document or instruction as if it were the
original and further to accept signatures on said faxes as if they were
original.
(All Accounts, Please Complete This Information and Sign on the
Following Page as Appropriate.)
THIS AGREEMENT is dated as of July 7, 1997
LaSalle Financial Partners, L.P.
(Name of Account Owner)
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Suite 500
(Street Address)
Kalamazoo, MI 49007
(City, State, Zip Code + 4)
By signing this Agreement, you acknowledge that:
1. The Securities in your margin account(s) and any securities for which
you have not fully paid, together with all attendant ownership rights, may be
loaned to Bear ▇▇▇▇▇▇▇ or to others; and
2. You have received a copy of this Agreement.
This Agreement contains a pre-dispute arbitration clause at Paragraph 24.
If Account is Owned by a Partnership:
Signature of Partnership:
LaSalle Financial Partners, L.P.
(Signed or Printed Name of
Partnership; Must Be Same
as "Account Owner" on Previous
Page)
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
LaSalle Capital Management,
Inc.
(Authorized Signatory of
General Partner)
Print Name:
Talman Financial, Inc.
(Printed Name and Title of
Signatory or Name of GP if
General Partner is itself a
Partnership)
By:
(Authorized Signatory and Title
of GP if General Partner is
itself a Partnership; otherwise,
blank)
If Account is Owned by a Corporation or LLC:
Account Name:
(Signed or Printed Name of Company;
Must Be Same as "Account Owner" on
Previous Page)
By
(Authorized Signature)
Print Name:
(Printed Name and Title of Signatory
or Name of GP if General Partner is
itself a Partnership)
By
(Authorized Signatory and Title of
GP if above signer is itself a
Partnership; otherwise, blank)
ACCEPTED AND AGREED TO:
___________________________________
For the Bear ▇▇▇▇▇▇▇ Companies Inc.
and its Subsidiaries
(Account Number)
PARTNERSHIP ACCOUNT AGREEMENT
To: Bear ▇▇▇▇▇▇▇ Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
In connection with your carrying a partnership account (which may be a joint
venture) in the name of ____________________________, a duly organized
partnership or joint venture (referred to herein as the "Partnership") of
which each of the following persons is a General Partner:
(Print Name(s) of General Partner(s)) (Signature(s) of General Partner(s))
Talman Financial, Inc. _________________________________
_________________________________ ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
LaSalle Capital Management, Inc. _________________________________
_________________________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
_________________________________ _________________________________
(attach additional pages hereto if necessary)
by signing above, each General Partner hereby confirms that such person has
unlimited liability for the obligations of the Partnership and each and every
General Partner shall have authority on behalf of the Partnership to establish
and maintain one or more accounts which may be margin accounts with Bear
▇▇▇▇▇▇▇ Securities Corp. ("Bear ▇▇▇▇▇▇▇ Securities") for the purpose of
purchasing, investing in, or otherwise acquiring, selling (including short
sales), possessing, transferring, exchanging, pledging, financing, engaging
in repurchase or reverse repurchase transactions or otherwise disposing of,
or realizing upon, and generally dealing in and with (a) any and all forms of
securities including, but not by way of limitation of, shares, stocks, listed
or OTC options, bonds, debentures, notes, scrip, participation certificates,
rights to subscribe, option warrants, certificates of deposit, mortgages,
GNMAs, FHLMCs, FNMAs, privately issued mortgage pass through certificates,
multi family project loans insured by the Federal Housing Administration,
forward contracts, standby contracts, choses in action, evidences of
indebtedness, commercial paper, certificates of indebtedness and certificates
of interest of any and every kind and nature whatsoever, secured or
unsecured, whether represented by trust, participating and/or other
certificates or otherwise; and (b) any and all commodities, commodity futures
contracts, commodity options and options on commodity futures.
The authority hereby conferred and the representations herein made shall
remain in effect until written notice to the contrary is received by Bear
▇▇▇▇▇▇▇ Securities and shall inure to the benefit of Bear ▇▇▇▇▇▇▇ Securities,
its controlling persons, successors and assigns.
Bear ▇▇▇▇▇▇▇ Securities is instructed to direct all notices or
communications including demands, notices, confirmations, reports and
statements of account, for the Partnership in connection with the
Partnership account as follows:
Name: LaSalle Financial Partners, L.P.
___________________________________
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(Signature of General Partner)
Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date:
July 7, 1997