EXHIBIT 99.1
PRIME BROKERAGE SERVICES AGREEMENT
This Agreement sets forth the terms and conditions under which UBS PaineWebber
Inc., its successors and assigns ("UBS PaineWebber") will clear your securities
transactions with such broker-dealer as you may designate, from time to time, as
your executing broker ("Executing Broker") provided that UBS PaineWebber has
entered into a Prime Brokerage Agreement with such broker-dealer with respect to
your prime brokerage transactions (hereinafter referred to as "Prime Brokerage
Transaction(s)").
1. ESTABLISHMENT OF ACCOUNT
UBS PaineWebber will clear Prime Brokerage Transactions in your account on UBS
PaineWebber's books which were executed by the designated Executing Broker in a
broker-dealer credit account established in UBS PaineWebber's name and
designated for your benefit on the books of the Executing Broker. On the
settlement date for each Prime Brokerage Transaction, UBS PaineWebber will
deliver or receive your securities to or from your Executing Broker against
payment in full by or to your Executing Broker on your behalf.
2. CUSTOMER TRADES
You hereby agree to inform UBS PaineWebber of all the details of each Prime
Brokerage Transaction executed through the Executing Broker for your account,
including, but not limited to, the contract amount, the security involved, the
number of shares or number of units, and whether the transaction was a long or
short sale or a purchase (collectively, the "Trade Data") by 5:00 p.m. New York
time on trade date. In the event of any discrepancy in the Trade Data reported
to UBS PaineWebber by you and the Trade Data reported to UBS PaineWebber by the
Executing Broker under the Prime Brokerage Agreement, you shall be responsible
for resolving such discrepancy promptly, and you shall be liable to UBS
PaineWebber for any loss, cost or expense sustained by UBS PaineWebber arising
out of such Prime Brokerage Transaction. Where the Executing Broker is
forwarding trade confirmations to you in care of UBS PaineWebber pursuant to
your written instructions, UBS PaineWebber upon request will promptly provide
you with copies of these confirmations.
3. APPLICABLE LAW AND REGULATIONS
All Prime Brokerage Transactions shall be subject to all applicable laws and the
rules and regulations of all federal, state and self-regulatory agencies
including, but not limited to, the Securities and Exchange Commission, all
relevant securities and commodity exchanges, the Municipal Securities Rulemaking
Board, the National Association of Securities Dealers, the Board of Governors of
the Federal Reserve System, and the constitution, rules and customs of the
exchange or market (and its clearing house, if any) where executed. In addition,
all Prime Brokerage Transactions shall be performed in a manner not inconsistent
with the SEC No-Action Letter dated January 25, 1994 relating to prime brokerage
services, which was issued by the Division of Market Regulation (the "SEC
Letter"), as the same may be amended, modified or supplemented from time to
time.
4. CUSTOMER QUALIFICATION
You agree to maintain in your account with UBS PaineWebber such minimum net
equity in cash or securities as may be required, from time to time, by UBS
PaineWebber (the "Minimum Net Equity"), which shall in no event be less than the
minimum net equity required by the SEC Letter, as such requirement may be
amended from time to time. If the net equity in your account is less than the
Minimum Net Equity on any business day you agree to restore the net equity in
your account to the Minimum Net Equity by 12:00 noon on the fifth business day
following that date. If such Minimum Net Equity is not restored by that date,
this Agreement will be terminated effective the close of business that day. As
used in this Agreement, the term "business day" means any day which is not a
Saturday or Sunday on which the New York Stock Exchange, Inc. is open for
business.
5. RIGHT TO DISAFFIRM; CUSTOMER'S SETTLEMENT OBLIGATION
UBS PaineWebber reserves the right to disaffirm or refuse to clear and settle
any Prime Brokerage Transaction with you. Notice of disaffirmance will be sent
to you and your Executing Broker promptly but in any event no later than the
close of business on the business day after the trade date of the transaction if
UBS PaineWebber has received the Executing Broker's confirmation by 12:00 noon
on that day. If the Executing Broker's confirmation is not received by 12:00
noon the next business day, the notice of disaffirmance will be sent by close of
business the day after the Executing Broker's confirmation is received. Pursuant
to the Prime Brokerage Agreement with your Executing Broker, such disaffirmance
of one Prime Brokerage Transaction will cause all transactions on that trade
date and the prior trade day to be disaffirmed. In the event UBS PaineWebber
indicates its intention not to settle, or fails to settle, any of your Prime
Brokerage Transactions, you shall be responsible and liable for settling such
Prime Brokerage Transaction directly with the Executing Broker.
6. DISCRETIONARY ACCOUNT
(a) If your account is managed on a discretionary basis by an investment
advisor, money manager or other person ("advisor"), you hereby acknowledge that
your Prime Brokerage Transactions may be commingled with those of other accounts
of your advisor ("sub-accounts"), according to your advisor's instructions, for
clearance by the Executing Broker in a single bulk trade and for settlement in
bulk with UBS PaineWebber.
(b) If you are executing this Agreement on behalf of a customer whose account is
managed by you, you hereby represent and covenant to UBS PaineWebber that (i)
you have sufficient knowledge of such customer to make the representation set
forth in paragraph 13 of this Agreement and (ii) you have been duly authorized
by the customers identified on the attached Schedule to execute this Agreement,
to bind such customer to arbitration, to enter orders to effect Prime Brokerage
Transactions, and to take such other actions as are contemplated by this
Agreement.
7. DEFAULT
If (i) any representation made by you shall have been incorrect or untrue in any
material respect when made, (ii) you shall have admitted your inability to, or
intention not to, perform any of your obligations hereunder, (iii) you file a
petition or other proceeding in bankruptcy, insolvency, or for the appointment
of a receiver, or such a petition or proceeding is filed against you, (iv) a
levy or an attachment is made against your account(s) with UBS PaineWebber, (v)
you die, become mentally incompetent or you are a corporation that dissolves, or
(vi) you shall have otherwise breached the terms of this Agreement (any one
being an "Event of Default"), UBS PaineWebber shall have the right
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to sell, without prior notice to you, any and all property in which you have an
interest held by or for the benefit of UBS PaineWebber, to buy any property that
may have been sold short, to cancel any outstanding transactions and/or to
purchase or sell any other securities or other instruments to offset market
risk, and you shall be liable to UBS PaineWebber for all losses, costs and
expenses caused by such Event of Default, together with interest earned thereon
from the date of such Event of Default at the prime rate, until payment in full
is received by UBS PaineWebber.
8. LEGALLY BINDING
You hereby agree that this Agreement and all the terms hereof shall be binding
upon you and your estate, heirs, executors, administrators, personal
representatives, successors and assigns. You agree that all Prime Brokerage
Transactions shall be for you account(s) in accordance with your oral or written
instructions. You hereby waive any and all defenses that any such instruction
was not in writing as may be required by the Statute of Frauds or any other
similar law, rule or regulation.
9. AMENDMENT; ENTIRE AGREEMENT
You agree that UBS PaineWebber may modify the terms of this Agreement at any
time upon prior written notice. If such modifications are unacceptable to you,
you must notify UBS PaineWebber in writing within 30 days of the transmittal of
such notice. Your account may then be terminated by UBS PaineWebber after which
you agree to remain liable to UBS PaineWebber for all existing liabilities or
obligations. Otherwise, this Agreement may not be waived or modified absent a
written instrument signed by an authorized representative of UBS PaineWebber.
Except as set forth above, this Agreement represents the entire agreement and
understanding between you and UBS PaineWebber concerning the subject matter
hereof.
10. TELEPHONE CONVERSATIONS
For the protection of both you and UBS PaineWebber, and as a tool to correct
misunderstandings, you hereby authorize UBS PaineWebber in its discretion and
without prior notice to you, to monitor and/or record any or all telephone
conversations between you, UBS PaineWebber and any of UBS PaineWebber's
employees or agents. You acknowledge that UBS PaineWebber may determine not to
make or keep such recordings and such determination shall not in any way affect
any party's rights.
11. ASSIGNABILITY
This Agreement and the rights and obligations arising out of the Prime Brokerage
Transactions cleared pursuant hereto may not be assigned without the prior
written consent of the other party, other than by UBS PaineWebber as part of a
general transfer of UBS PaineWebber's business.
12. SEVERABILITY
If any provision of this Agreement is or becomes inconsistent with any
applicable present or future law, rule or regulation, that provision shall be
deemed modified or, if necessary, rescinded in order to comply with the relevant
law, rule or regulation. All other provisions of this Agreement shall continue
to remain in full force and effect.
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13. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION
You represent that you are of legal age and that, unless you have notified UBS
PaineWebber to the contrary, neither you nor any member of your immediate family
is an employee of any exchange or member thereof, an employee of the National
Association of Securities Dealers, Inc. or a member thereof, an employee of any
corporation, firm or individual engaged in the business of dealing, as broker or
principal, in securities, options or futures, or an employee of any bank, trust
company or insurance company.
EXTRAORDINARY EVENTS
UBS PaineWebber 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.
15. HEADINGS
The headings of the provisions hereof are for descriptive purposes only and
shall not modify or qualify any of the rights or obligations set forth in such
provisions.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York without
giving effect to the conflicts of law principles thereof.
17. DESIGNATION OF ADVISOR/AGENT
If your account is managed by an advisor, as such term is defined in paragraph
6(a), or by an agent, and you are executing this agreement, you hereby authorize
______________________ to engage in Prime Brokerage Transactions on your behalf,
and you hereby request and covenant that such advisor has been duly authorized
by you to take such actions as are contemplated by this agreement.
18. ARBITRATION DISCLOSURES
* ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
* THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR 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.
19. ARBITRATION
YOU AGREE, AND BY CARRYING AN ACCOUNT AS PRIME BROKER FOR YOU, UBS PAINEWEBBER
AGREES THAT CONTROVERSIES ARISING BETWEEN YOU AND UBS PAINEWEBBER, ITS CONTROL
PERSON, PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE SUCCESSORS,
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ASSIGNS AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR SUBSEQUENT TO THE DATE
HEREOF, SHALL BE DETERMINED BY ARBITRATION. 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. (AND ONLY BEFORE SUCH EXCHANGES
OR ASSOCIATION). 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
THE UBS PAINEWEBBER (OR ANY OTHER ADDRESS OF WHICH YOU ARE ADVISED IN WRITING),
BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM UBS
PAINEWEBBER TO MAKE SUCH ELECTION, THEN UBS PAINEWEBBER MAY MAKE SUCH ELECTION.
THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND
JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL
HAVING JURISDICTION.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A MEMBER OF A PUTATIVE
CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED
BY THE PUTATIVE CLASS 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.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED A COPY OF THIS
AGREEMENT. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH
19.
THIS AGREEMENT IS DATED AS OF ______________________, 20___.
___________________________________
(TYPED OR PRINTED NAME)
___________________________________ ACCOUNT NO:______________________
(SIGNATURE)
___________________________________ SOCIAL SECURITY # OR TAX ID:_____
(TYPED OR PRINTED NAME)
___________________________________
(SIGNATURE)
___________________________________
___________________________________
___________________________________
(MAILING ADDRESS)
UBS PAINEWEBBER INC.
BY:___________________________________
TITLE:__________________________________
- If this is a joint account, both parties must sign. Persons signing on
behalf of others should indicate the titles or capacities in which they
are signing.
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SCHEDULE
LIST OF MANAGED ACCOUNTS COVERED BY PRIME BROKERAGE SERVICES AGREEMENT
CUSTOMER NAME ADDRESS TAX ID NO.
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