| Account
No.______________ |
Name_______________ |
To: Penson Financial Services,
Inc.
1. Applicable Rules and Regulations. All transactions shall be
subject to the constitution, rules, regulations, customs and usages
of the exchange or market and its clearing house, if any, upon which
such transactions are executed, except as otherwise specifically
provided in this Agreement.
2. Definitions. “Introducing broker” means any brokerage firm, which
introduces securities transactions on behalf of the undersigned,
which transactions are cleared through you, whether one or more.
“Obligations” means all indebtedness, debit balances, liabilities or
other obligations of any kind of the undersigned to you, whether now
existing or hereafter arising. “Securities and other property” shall
include, but shall not be limited to, money, securities, commodities
or other property of every kind and nature and all contracts and
options relating thereto, whether for present or future delivery.
“You” or “your” refers to Penson Financial Services, Inc.
“Undersigned” refers to the customer, or the party signing this
agreement on behalf of the customer.
3. Security Interest. All securities and other property now or
hereafter held, carried or maintained by you in or for any of the
accounts of the undersigned, now or hereafter opened, including any
accounts in which the undersigned may have an interest, shall be
subject to a first and prior lien and security interest for the
discharge of all of the obligations of the undersigned to you, and
are to be held by you as security for the payment of the obligations
of the undersigned to you, to the fullest extent allowed by law. You
shall have the right to transfer securities and other property so
held by you from or to any other of the accounts of the undersigned
whenever you so determine.
4. Liquidation. In the event of the death of the undersigned, or in
the event the margin in any account in which the undersigned has an
interest shall in either your or the introducing broker’s discretion
become unsatisfactory to either you or the introducing broker, or be
deemed insufficient by either you or the introducing broker, you are
hereby authorized; (a) to sell any or all securities or other
property which you may hold for the undersigned (either individually
or jointly with others); (b) to buy any or all securities and other
property which may be short in such accounts; and/or © to cancel any
open orders and to close any or all outstanding contracts; all
without demand for margin or additional margin, notice of sale or
purchase, or other notice or advertisement, and that any prior
demand or notice shall not be a waiver of your rights provided
herein. You may likewise accept and rely upon instructions which you
receive from the introducing broker to effect any of the
aforementioned transactions (as noted in (a); (b); and (c). You
shall have the discretion to determine which securities and other
property are to be sold and which contracts are to be closed. Any
such sales or purchases may be made at your discretion on any
exchange, the over-the-counter market or any other market where such
business is usually transacted, or at public auction or private
sale, and you may be the purchaser for your own account.
5. Cancellation. You are authorized, in your discretion, should you
for any reason whatsoever deem it necessary for your protection,
without notice, to cancel any outstanding order, to close out the
accounts of the undersigned, in whole or in part, or to close out
any commitment made on behalf of the undersigned.
6. Payment of Indebtedness Upon Demand. The undersigned shall at all
times be liable for the payment upon demand of any obligations owing
from the undersigned to you, and the undersigned shall be liable to
you for any deficiency remaining in any such accounts in the event
of liquidation thereof (as contemplated in Paragraph 4 of this
Agreement or otherwise), in whole or in part, by you or by the
undersigned; and the undersigned shall make payment of such
obligations upon demand.
7. Liability for Costs of Collection. The costs and expenses of
collection of the debit balance and any unpaid deficiency in the
accounts of the undersigned with you, including but not limited to
reasonable attorneys’ fees and expenses, incurred and payable or
paid by you shall be payable to you by the undersigned.
8. Accounts Carried as Clearing Broker. The undersigned understands
that you are carrying the accounts of the undersigned as clearing
broker by arrangement with the undersigned’s introducing broker
through whose courtesy the account of the undersigned has been
introduced to you. Until receipt from the undersigned of written
notice to the contrary, you may accept from and rely upon the
undersigned’s introducing broker (a) orders for the purchase or sale
of securities and other property, and (b) any other instructions
concerning the undersigned’s accounts. The undersigned represents
that the undersigned understands that you act only to clear trades
introduced by the undersigned’s introducing broker and to effect
other back office functions for the undersigned’s introducing
broker. The undersigned confirms to you that the undersigned is
relying for any advice concerning the undersigned’s accounts solely
on the undersigned’s introducing broker. The undersigned understands
that all representatives, employees and other agents with whom the
undersigned communicates concerning the undersigned’s account are
agents of the introducing broker and not your representatives,
employees or other agents. The undersigned understands that you are
not a principal of or partner with, and do not control in any way,
the introducing broker or its representatives, employees or other
agents. The undersigned understands that you will not review the
undersigned’s accounts and will have no responsibility for trades
made in the undersigned’s accounts. You shall not be responsible or
liable for any acts or omissions of the introducing broker or its
representatives, employees or other agents.
9. Communications. You may send communications to the undersigned at
the address of the undersigned or at such other address as the
undersigned may hereafter give you in writing, and all
communications so sent, whether by mail, telegraph, messenger or
otherwise, shall be deemed given to the undersigned personally,
whether actually received or not. Reports of execution of orders and
statements of accounts of the undersigned shall be conclusive if not
objected to in writing to you, the former within five (5) days and
the latter within ten (10) days, after forwarding by you to the
undersigned by mail or otherwise.
BY SIGNING BELOW, THE UNDERSIGNED AGREES TO ALL TERMS OF THE MARGIN
AND SHORT ACCOUNT AGREEMENT PRINTED ON THIS SIDE AND THE REVERSE
SIDE OF THIS DOCUMENT. THE REVERSE SIDE OF THIS AGREEMENT CONTAINS A
PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 10. The undersigned
acknowledges that the undersigned’s margin account securities may be
borrowed by you or loaned to others. The undersigned also
acknowledges receipt of a copy of this Agreement and a copy of the
Margin Risk Disclosure Statement.
Customer's signature X_______________________
Dated:______________________
Joint signature X_______________________
Dated:______________________
Correspondent
Approval_________________________ Date________
THE FOLLOWING ARBITRATION AGREEMENT SHOULD BE READ IN CONJUNCTION
WITH THESE DISCLOSURES:
a. ALL PARTIES TO THIS AGREEMENT ARE GIVING UP THE RIGHT TO SUE EACH
OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY EXCEPT AS
PROVIDED BY THE RULES OF THE ARBITRATION FORM IN WHICH A CLAIM IS
FILED;
b. ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY’S
ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS
VERY LIMITED.
c. THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS
STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN
ARBITRATION THAN IN COURT PROCEEDINGS;
d. THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR
AWARD.
e. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
f. THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR
BRINGING A CLAIM IN ARBITRATION. IN SOME CASES, A CLAIM THAT IS
INELIGIBLE FOR ARBITRATION MAY BE BROUGHT IN COURT.
g. THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED,
AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS
AGREEMENT.
10. ARBITRATION AGREEMENT. ANY AND ALL CONTROVERSIES, DISPUTES OR
CLAIMS BETWEEN THE UNDERSIGNED AND YOU, OR THE INTRODUCING BROKER,
OR YOUR AGENTS, REPRESENTATIVES, EMPLOYEES, DIRECTORS, OFFICERS OR
CONTROL PERSONS OR THE AGENTS, REPRESENTATIVES, EMPLOYEES,
DIRECTORS, OFFICERS OR CONTROL PERSONS OF THE INTRODUCING BROKER,
ARISING OUT OF, IN CONNECTION WITH, FROM OR WITH RESPECT TO (a) ANY
PROVISIONS OF OR THE VALIDITY OF THIS AGREEMENT OR ANY RELATED
AGREEMENTS, (b) THE RELATIONSHIP OF THE PARTIES HERETO, OR (c) ANY
CONTROVERSY ARISING OUT OF YOUR BUSINESS, THE INTRODUCING BROKER’S
BUSINESS OR THE UNDERSIGNED’S ACCOUNTS, SHALL BE CONDUCTED PURSUANT
TO THE CODE OF ARBITRATION PROCEDURE OF THE NASD. ARBITRATION MUST
BE COMMENCED BY SERVICE OF A WRITTEN DEMAND FOR ARBITRATION OR A
WRITTEN NOTICE OF INTENTION TO ARBITRATE. THE DECISION AND AWARD OF
THE ARBITRATOR(S) SHALL BE CONCLUSIVE AND BINDING UPON ALL PARTIES,
AND ANY JUDGMENT UPON ANY AWARD RENDERED MAY BE ENTERED IN A COURT
HAVING JURISDICTION THEREOF, AND NEITHER PARTY SHALL OPPOSE SUCH
ENTRY.
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;
or (ii) the class is de-certified; 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.
11. Hypothecation. Within the limitations imposed by applicable
laws, rules and regulations, all securities now or hereafter held by
you, or carried by you in any account for the undersigned (either
individually or jointly with others), or deposited to secure same,
may from time to time, without any notice, be carried in your
general loans and may be pledged, repledged, hypothecated or
re-hypothecated, separately or in common with other securities for
the sum due to you thereon or for a greater sum and without
retaining in your possession or control for delivery a like amount
of similar securities. The IRS requires Broker Dealers to treat
dividend payments on loaned securities positions as in-lieu
dividends for 1099 tax reporting purposes. Taxation of substitute
dividend payments may be greater than ordinary on qualified
dividends. It is understood, however, that you agree to deliver to
the undersigned upon demand and upon payment of the full amount due
thereon, all securities in such accounts, but without obligation to
deliver the same certificates or securities deposited by the
undersigned originally. Any securities in the undersigned’s margin
or short account may be borrowed by you, or lent to others.
12. Interest. Debit balances in all the accounts of the undersigned
shall be charged with interest in accordance with your established
custom, as disclosed to the undersigned in the Customer Information
Brochure pursuant to the provisions of Rule 10b-16 of the Securities
Exchange Act.
13. Margin. The undersigned agrees to maintain in all accounts with
you such positions and margins as required by all applicable
statutes, rules, regulations, procedures and custom, or as you deem
necessary or advisable. The undersigned agrees to promptly satisfy
all margin and maintenance calls.
14. Sales. The undersigned agrees to specifically designate any
order to sell a security, which the undersigned does not own as a
short sale, and understands that you will mark such order as a short
sale. The undersigned agrees that any order which is not
specifically designated as a short sale is a sale of securities
owned by the undersigned, and that the undersigned will deliver the
securities on or before settlement date, if not already in the
account. If the undersigned should fail to make such delivery in the
time required, you are authorized to borrow such securities as
necessary to make delivery for the undersigned’s sale, and the
undersigned agrees to be responsible for any loss you may thereby
sustain, or which you may sustain as a result of your inability to
borrow such securities.
15. Representations. The undersigned represents that the undersigned
is of majority age, that the undersigned is not an employee of any
exchange, or of any corporation of which any exchange owns a
majority of the capital stock, or of a member of any exchange, or of
a member firm or a member corporation registered on any exchange or
of a bank, trust company, insurance company or of any corporation,
firm or individual engaged in the business dealing either as broker
or as principal in securities, bills of exchange, acceptances or
other forms of commercial paper. If the undersigned is a
corporation, partnership, trust or other entity, the undersigned
represents that its governing instruments permit this Agreement,
that all applicable persons have authorized this Agreement and that
the undersigned signatory is authorized to bind the undersigned. The
undersigned represents that the undersigned shall comply with all
applicable laws, rules and regulations in connection with the
undersigned’s account. The undersigned further represents that no
one except the undersigned has an interest in the account or
accounts of the undersigned with you.
16. Joint Account. If the undersigned shall consist of more than one
person, the undersigned’s obligations under this Agreement shall be
joint and several. References to the “undersigned” shall include
each of the undersigned. You may rely on transfer or other
instructions from any one of the undersigned in a joint account, and
such instructions shall be binding on each of the undersigned. You
may deliver securities or other property to, and send confirmations,
notices, statements and communications of every kind, to any one of
us, and such action shall be binding on each of us. Notwithstanding
the foregoing, you are authorized in your discretion to require
joint action by the joint tenants with respect to any matter
concerning the joint account, including but not limited to the
giving or cancellation of orders and the withdrawal or money,
securities, futures or commodities.
17. Other Agreements. The undersigned agrees to be bound by the
terms of your Customer Account Agreement. If the undersigned trades
any options, the undersigned agrees to be bound by the terms of your
Customer Option Agreement. The undersigned understands that copies
of these agreements are available from you and, to the extent
applicable, are incorporated by reference herein. The terms of these
other agreements are in addition to the provisions of this Agreement
and any other written agreements between you and the undersigned.
18. Data Not Guaranteed. The undersigned expressly agrees that any
data or online reports is provided to the undersigned without
warranties of any kind, express or implied, including but not
limited to, the implied warranties of merchantability, fitness of a
particular purpose or non-infringement. The undersigned acknowledges
that the information contained in any reports provided by you is
obtained from sources believed to be reliable but is not guaranteed
as to its accuracy of completeness. Such information could include
technical or other inaccuracies, errors or omissions. In no event
shall you or any of your affiliates be liable to the undersigned or
any third party for the accuracy, timeliness, or completeness of any
information made available to the undersigned or for any decision
made or taken by the undersigned in reliance upon such information.
In no event shall you or your affiliated entities be liable for any
special incidental, indirect or consequential damages whatsoever,
including, without limitation, those resulting from loss of use,
data or profits, whether or not advised of the possibility of
damages, and on any theory of liability, arising out of or in
connection with the use of any reports provided by you or with the
delay or inability to use such reports.
19. Credit Check. You are authorized, in your discretion, should you
for any reason deem it necessary for your protection to request and
obtain a consumer credit report for the undersigned.
20. Miscellaneous If any provision of this Agreement is held to be
unenforceable; it shall not affect any other provision of this
Agreement. The headings of each section of this Agreement are
descriptive only and do not modify or qualify any provision of this
Agreement. This Agreement and its enforcement shall be governed by
the laws of the state of Texas and shall cover individually and
collectively all accounts which the undersigned has previously
opened, now has open or may reopen with you, or any introducing
broker, and any and all previous, current and future transactions in
such accounts. Except as provided in this Agreement, no provision of
this Agreement may be altered, modified or amended unless in writing
signed by your authorized representative. This Agreement and all
provisions shall inure to the benefit of your successors, whether by
merger, consolidation or otherwise, your assigns, the undersigned’s
introducing broker, and all other persons specified in Paragraph 10.
You shall not be liable for losses caused directly or indirectly by
any events beyond your reasonable control, including without
limitation, government restrictions, exchange or market rulings,
suspension of trading or unusually heavy trading in securities, a
general change in economic, political or financial conditions, war
or strikes. You may transfer the accounts of the undersigned to your
successors and assigns. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the
undersigned.
|
