<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------------
FORM 10-QSB
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission File No. 0-23587
CHAPMAN HOLDINGS, INC.
(Name of small business issuer in its charter)
Maryland 52-206977
- ----------------------------- ------------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation)
401 East Pratt Street, Suite 2800, Baltimore, Maryland 21202
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(Address of Principal Executive Office)
Issuer's telephone number, including area code: (410) 625-9656
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(Former Name, Former Address and Former Fiscal Year,
if Changed Since Last Report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days:
Yes [X ]No [ ]
Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, Par Value $0.001 Per Share
(Title of Class)
As of September 30, 1999, 2,953,622 shares of the issuer's common stock, par
value $0.001 per share, were outstanding.
Transitional Small Business Disclosure Format: Yes [ ] No [X]
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TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
PART I...................................................................... 1
ITEM 1 FINANCIAL STATEMENTS...................................... 1
ITEM 2 MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.......................
PART II.....................................................................
ITEM 2 CHANGES IN SECURITIES AND USE OF PROCEEDS.................
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K..........................
</TABLE>
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
The consolidated financial statements for the nine months ended
September 30, 1999 have not been audited, but in the opinion of management,
contain all adjustments (consisting only of normal recurring adjustments)
necessary to present fairly the financial position and results of operations of
the Company as of such date and for such periods. The unaudited consolidated
financial statements should be read in conjunction with the Consolidated
Financial Statements of the Company and the Notes thereto appearing in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1998. The
results of operations for the nine months ended September 30, 1999 are not
necessarily indicative of the results of operations that may be expected for the
year ending December 31, 1999 or any future periods.
<PAGE>
CHAPMAN HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 1998, AND SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
December 31, September 30,
1998 1999
------------ ------------
(Unaudited)
<S> <C> <C>
ASSETS:
Cash and cash equivalents $ 3,090,000 $ 1,775,000
Cash deposits with clearing organization 2,389,000 2,477,000
Investments 204,000 239,000
Securities owned 2,080,000 1,813,000
Receivables from brokers and dealers 331,000 576,000
Receivables from affiliates 380,000 237,000
Income taxes receivable 294,000 300,000
Advances to officer/employee 657,000 723,000
Office equipment, net 38,000 95,000
Prepaids and other assets 583,000 570,000
Intangible assets 145,000 113,000
Deferred tax asset 14,000 345,000
------------ ------------
Total assets $ 10,205,000 $ 9,263,000
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY:
Accounts payable and accrued expenses $ 261,000 $ 676,000
Margin loan payable 2,559,000 2,050,000
Accrued compensation 243,000 238,000
Deferred rent 78,000 45,000
------------ ------------
Total liabilities 3,141,000 3,009,000
------------ ------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common stock, $.001 par value, 20,000,000 shares authorized,
2,953,622 shares issued and outstanding 3,000 3,000
Additional paid-in capital 7,903,000 7,903,000
Accumulated deficit (842,000) (1,652,000)
------------ ------------
Total stockholders' equity 7,064,000 6,254,000
------------ ------------
Total liabilities and stockholders' equity $ 10,205,000 $ 9,263,000
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
<PAGE>
CHAPMAN HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999
AND FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------- ---------------------------
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
REVENUE:
Commissions $ 749,000 $ 895,000 $ 1,909,000 $ 3,243,000
Underwriting and management fees 233,000 175,000 376,000 554,000
Interest and dividends 81,000 58,000 247,000 163,000
(Loss) gains on trading (174,000) (63,000) (174,000) 246,000
----------- ----------- ----------- -----------
Total revenue 889,000 1,065,000 2,358,000 4,206,000
----------- ----------- ----------- -----------
EXPENSES:
Compensation and benefits 546,000 739,000 1,317,000 2,324,000
Floor brokerage and clearing fees 102,000 174,000 302,000 528,000
Communications 43,000 84,000 130,000 216,000
Occupancy, equipment rental, and
depreciation 136,000 160,000 331,000 489,000
Travel and business development 70,000 49,000 167,000 260,000
Professional fees 133,000 225,000 192,000 656,000
Other operating expense 152,000 334,000 326,000 874,000
----------- ----------- ----------- -----------
Total expenses 1,182,000 1,765,000 2,765,000 5,347,000
----------- ----------- ----------- -----------
Loss from continuing operations
before income tax benefit (293,000) (700,000) (407,000) (1,141,000)
INCOME TAX BENEFIT 62,000 236,000 102,000 331,000
----------- ----------- ----------- -----------
Net loss $ (231,000) $ (464,000) $ (305,000) $ (810,000)
=========== =========== =========== ===========
BASIC AND DILUTIVE EARNINGS PER
SHARE DATA:
Net loss $ (0.08) $ (0.16) $ (0.11) $ (0.27)
=========== =========== =========== ===========
Weighted average shares outstanding 2,954,000 2,954,000 2,744,000 2,954,000
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these
consolidated statements.
<PAGE>
CHAPMAN HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999
<TABLE>
<CAPTION>
Nine months ended
September 30,
---------------------------
1998 1999
----------- -----------
(Unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (305,000) $ (810,000)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation/amortization expense -- 38,000
Unrealized loss/(gain) on securities owned 36,000 (246,000)
Deferred tax assets -- (331,000)
Effect from changes in assets and liabilities-
Deposits with clearing organization (1,599,000) (88,000)
Receivables from brokers and dealers (48,000) (245,000)
Income tax receivable -- (6,000)
Receivables from affiliates 801,000 143,000
Prepaids and other assets (309,000) 13,000
Net assets from discontinued operations 6,000 --
Accounts payable and accrued expenses 120,000 415,000
Accrued compensation 47,000 (5,000)
Deferred rent (8,000) (33,000)
Payable to affiliated partnership (5,000) --
Income taxes payable (131,000) --
----------- -----------
Net cash used in operating activities (1,395,000) (1,155,000)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of office equipment, net (4,000) (63,000)
Purchase of investments (69,000) (35,000)
Proceeds from sale of investments -- 4,000
Advances to officer/employee (448,000) (66,000)
----------- -----------
Net cash used in investing activities (521,000) (160,000)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common stock 6,812,000 --
----------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS 4,896,000 (1,315,000)
CASH AND CASH EQUIVALENTS, beginning of year 211,000 3,090,000
----------- -----------
CASH AND CASH EQUIVALENTS, end of year $ 5,107,000 $ 1,775,000
=========== ===========
SUPPLEMENTAL CASH FLOW DISCLOSURE:
Cash Paid for:
Interest $ 3,000 $ 66,000
=========== ===========
Income taxes $ 22,000 $ 5,000
=========== ===========
</TABLE>
The accompanying notes are an integral part of these
consolidated statements.
<PAGE>
CHAPMAN HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1999
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
BASIS OF PRESENTATION
Chapman Holdings, Inc. provides securities brokerage and investment banking
services. The accompanying unaudited consolidated financial statements
include the accounts of Chapman Holdings, Inc. (CHI) and its wholly owned
subsidiaries, The Chapman Co. and Charles A. Bell (collectively, the Company).
All significant intercompany accounts and transactions have been eliminated
in consolidation. The accompanying consolidated financial statements are
presented on the accrual basis of accounting in accordance with generally
accepted accounting principles. The preparation of financial statements in
conformity with generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities as of the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from those
estimates.
INTERIM FINANCIAL STATEMENTS
The consolidated financial statements for the three and nine months ended
September 30, 1998 and 1999, are unaudited, but in the opinion of management,
such financial statements have been presented on the same basis as the audited
consolidated financial statements and include all adjustments, consisting only
of normal recurring adjustments necessary for a fair presentation of the
financial position and results of operations, for the periods.
As permitted under the applicable rules and regulations of the Securities and
Exchange Commission, these financial statements do not include all disclosures
normally included with audited consolidated financial statements, and
accordingly, should be read in conjunction with the consolidated financial
statements and notes thereto as of December 31, 1998, included in the Company's
Form 10K-SB filed. The results of operations presented in the accompanying
consolidated financial statements are not necessarily representative of
operations for an entire year and because of the nature of the Company's
operations can be materially different between periods.
PLAN OF MERGER
Subsequent to September 30, 1999, the Company signed a merger agreement which is
subject to stockholders approval and the completion of an initial public stock
offering of common stock by eChapman.com, among other things, to merge into a
wholly owned subsidiary of eChapman.com. This merger would result in the
Company, Chapman Capital Management Holdings, Inc. and Chapman Insurance
Holdings, Inc. becoming wholly-owned subsidiaries of eChapman.com. eChapman is
a newly formed corporation designed to bring these companies together to take
advantage of the unique opportunities presented by the growth of the Internet.
eChapman.com is owned by the major stockholder of the Company.
This planned merger and the operations of eChapman.com after the merger are
subject to certain risks. The negative impact from these risks could have
material adverse effects on the future results of operations and financial
position
<PAGE>
of the Company. These risk items include the fact that eChapman.com has not
launched a web site and has no internet-related operating history; the web
site must be designed, developed, hosted by a service provider and marketed;
eChapman.com must raise at least $20 million from its planned public offering
to complete this merger; the eChapman.com brand must be successful in order
for it to attract users, advertisers and strategic partners; and the success
of the "Domestic Emerging Markets" strategy through the use of the internet.
SECURITIES OWNED AND NOT YET PURCHASED
Securities owned consist of trading proprietary stock, which is carried at
market. The proprietary stock is primarily stock of CHI and Chapman Capital
Management Holdings, Inc. (CCMH), an affiliate. The Chapman Co. is a market
maker for CHI and for CCMH and, thus, holds this stock in inventory. As of
September 30, 1999, the Chapman Co. held 121,133 shares of common stock of CHI.
The proprietary stock was purchased on margin.
EARNINGS PER SHARE
As of September 30, 1999, there were 43,900 stock options outstanding; however
the common stock equivalents of these options was not included in the diluted
earnings per share as the stock options are antidulutive.
RELATED PARTY TRANSACTIONS
In July 1999, the Company borrowed $3,220,000 from Chapman Capital Management
Holdings, Inc., an affiliate, in connection with the Company's participation
in a municipal underwriting syndicate. The note was payable on demand and
accrued interest at an interest rate equal to the brokers call rate as in
effect from time to time. The loan and accrued interest were repaid September
14, 1999.
<PAGE>
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Note Regarding Forward-Looking Information
Certain statements under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and elsewhere in this
Report constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors which may cause
the actual results, performance or achievements of the Company, or industry
results, to be materially different from any future results, performance, or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, general economic and business conditions in the
Company's market area, inflation, fluctuations in interest rates, changes in
government regulations, competition and the ability of the Company to implement
its business strategy and other risks discussed in the Company's Annual Report
on Form 10-KSB for the year ended December 31, 1998, and in this and other
reports filed by the Company.
Forward-looking statements are intended to apply only at the time they
are made. Moreover, whether or not stated in connection with a forward-looking
statement, the Company undertakes no obligation to correct or update a
forward-looking statement should the Company later become aware that it is not
likely to be achieved. If the Company were to update or correct a
forward-looking statement, investors and others should not conclude that the
Company will make additional updates or corrections thereafter.
The following discussion should be read in conjunction with the
financial statements contained in Item 1 of Part I of this Form 10-QSB.
RESULTS OF OPERATIONS
The following table reflects items in the Statements of Operations as dollar
amounts and as percentages of total revenue.
CHAPMAN HOLDINGS INC. AND SUBSIDIARIES
Consolidated Statement of Operations
<TABLE>
<CAPTION>
Three Months Ended September 30,
------------------------------------------------------------
1999 1998
-------------------------- ---------------------------
Percentage of Percentage of
Amount Total Revenue Amount Total Revenue
------ ------------- ------ -------------
<S> <C> <C> <C> <C>
(Unaudited)
Revenue:
Commissions $ 895,000 84.0% $ 749,000 84.3%
Underwriting and management fees 175,000 16.4% 233,000 26.2
Interest and dividends 58,000 5.5% 81,000 9.1
Loss on trading (63,000) -5.9% (174,000) -19.6
----------- ---- ----------- ----
Total revenue 1,065,000 100.0% 889,000 100.0
----------- ---- ----------- ----
Expense:
Compensation and benefits 739,000 69.4% 546,000 61.4
Floor Brokerage and clearing 174,000 16.3% 102,000 11.5
Communications 84,000 7.9% 43,000 4.8
Occupancy and equipment 160,000 15.0% 136,000 15.3
Professional fees 225,000 21.1% 133,000 15.0
Travel and business development 49,000 4.6% 70,000 7.9
Other operating expense 334,000 31.4% 152,000 17.1
----------- ---- ----------- ----
Total expenses 1,765,000 165.7% 1,182,000 133.0
----------- ---- ----------- ----
Loss from continuing operations before
income tax benefit (700,000) -65.7% (293,000) -33.0
Income tax benefit 236,000 22.2% 62,000 7.0%
----------- ---- ----------- ----
Net loss $ (464,000) (43.6)% $ 231,000 (13.0)%
=========== ==== =========== ====
</TABLE>
CHAPMAN HOLDINGS INC. AND SUBSIDIARIES
Consolidated Statement of Operations
<TABLE>
<CAPTION>
Nine Months Ended September 30,
-------------------------------------------------------------
1999 1998
--------------------------- ---------------------------
Percentage of Percentage of
Amount Total Revenue Amount Total Revenue
------ ------------- ------ -------------
<S> <C> <C> <C> <C>
(Unaudited)
Revenue:
Commissions $ 3,243,000 77.1% $ 1,909,000 81.0%
Underwriting and Management fees 554,000 13.2 376,000 15.9
Interest and dividends 163,000 3.9 247,000 10.5
Gain on trading 246,000 5.8 (174,000) -7.4
----------- ---- ----------- ----
Total revenue 4,206,000 100.0 2,358,000 100.0
----------- ---- ----------- ----
Expense:
Compensation and benefits 2,324,000 55.2 1,317,000 55.9
Floor Brokerage and clearing 528,000 12.6 302,000 12.8
Communications 216,000 5.1 130,000 5.5
Occupancy and equipment 489,000 11.6 331,000 14.0
Professional fees 656,000 15.6 192,000 8.2
Travel and business development 260,000 6.2 167,000 7.1
Other operating expenses 874,000 20.8 326,000 13.8
----------- ---- ----------- ----
Total expenses 5,347,000 127.1 2,765,000 117.3
----------- ---- ----------- ----
Loss from continuing operatios before
income tax benefit (1,141,000) (27.1) (407,000) (17.3)
Income tax benefit 331,000 -7.9 102,000 4.3
----------- ---- ----------- ----
Net loss $ (810,000) (19.2) $ (305,000) (13.0)%
=========== ==== =========== ====
</TABLE>
Total revenue increased $176,000, or 19.8% to $1,065,000 for the three
months ended September 30, 1999 from $889,000 for the prior comparable period.
Total revenue increased by $1,848,000, or 78.4%, to $4,206,000 for the nine
months ended September 30, 1999 from $2,358,000 for the prior comparable period.
Revenue was higher due to an increase in commission revenue and municipal
designations combined with a gain on trading.
<PAGE>
Commissions revenue increased by $146,000, or 19.5% to $895,000 for
the three months ended September 30, 1999 from $749,000 for the prior
comparable period. Commission revenue increased by $1,334,000, or 69.9%, to
$3,243,000 for the nine months ended September 30, 1999 from $1,909,000 in
the comparable prior period. The increase was due to growth in revenues from
municipal designations which increased $613,000, or 190.0%, to $936,000 for
the nine months ended September 30, 1999 from $323,000 for the prior
comparable period. The company participated in 36 municipal designations
during the nine months ended September 30, 1999 compared to 28 in the prior
comparable period. Commission revenue from the sale of equities increased
$318,000, or 21.3%, to $1,807,000 for the nine months ended September 30,
1999 from $1,489,000 for the prior comparable period. Commission revenue on
fixed income securities increased $375,000, or 396.6%, to $471,000 for the
nine months ended September 30, 1999 from $96,000 for the prior comparable
period. This increase in fixed income can be attributable to favorable
interest rates during the first nine months of the year.
Underwriting and management fees revenue decreased $58,000, or 24.9%
to $175,000 for the three months ended September 30, 1999 from $233,000 for
the prior comparable period. Underwriting and management fee revenue
increased by $178,000, or 47.3%, to $554,000 for the nine months ended
September 30, 1999 from $376,000 for the prior comparable period. The
decrease for the quarter is due to a decrease in underwriting syndication's of
$112,000 offset by an increase in management fees of $54,000. The overall
increase is due to an increase in underwriting syndications of $58,000, or
33.3% to $232,000 from $174,000 and an increase in management and advisory
fees of $126,000, or 62.7% to $327,000 from $201,000 for the nine months
ended September 30, 1999.
Interest and dividends revenue decreased by $23,000, or 28.4% to
$58,000 for the three months ended September 30, 1999 from $81,000 for the
prior comparable period. Interest and dividend revenues decreased by $84,000,
or 34.0%, to $163,000 for the nine months ended September 30, 1999 from
$247,000 for the prior comparable period. This decrease is due to lower
earnings due to lower cash balances resulting from the Company's business
expansion strategy.
The unrealized loss on trading was $63,000 for the three months
ended September 30, 1999. An unrealized gain on trading of $246,000 was
reported for the nine months ended September 30, 1999. The Company's
unrealized gain on trading is attributable to an increase in the market value
of the market making securities inventory.
Total expenses increased by $583,000, or 49.3%, $1,765,000 for the
three months ended September 30, 1999 from $1,182,000 for the prior
comparable period. Total expenses increased by 2,582,000, or 93.4%, to
$5,347,000 for the nine months ended from $2,765,000 for the prior
<PAGE>
comparable period. The largest components of the increase in expenses are
associated with the opening of new regional offices in selected markets,
business development costs associated with the Company's marketing strategy
and increased staffing pursuant to the Company's business expansion strategy.
Compensation and benefits increased by $193,000, or 35.3%, to
$739,000 for the three months ended September 30, 1999 from $546,000 for the
prior comparable period. As a percentage of total revenue, these expenses
were 69.4% and 61.4% respectively. Compensation and benefits increased by
$1,007,000, or 76.5%, to $2,324,000 for the nine months ended September 30,
1999 from $1,317,000 for the prior comparable period. As a percentage of
revenue, these expenses were 55.2% and 55.9% respectively. Compensation
expense includes sales commissions paid to brokers and varies in relation to
changes in commission revenue. The increase in compensation and benefits is
attributable to the increase in commissions paid to brokers due to increased
retail and municipal sales volume and the addition of 29 employees compared
to September 30, 1998.
Floor brokerage and clearing fees increased by $72,000, or 70.6%, to
$174,000 for the three months ended September 30, 1999 from $102,000 for the
prior comparable period. Floor brokerage and clearing fees increased by
$226,000, or 74.8%, to $528,000 for the nine months ended September 30, 1999
from $302,000 for the prior comparable period. This increase is mainly due to
an increase in the number of broker's and related transaction volume offset
by a slight decline in the average dollar amount per transaction as a result
of changing clearing firms.
Communications expense increased by $41,000, or 95.3%, to $84,000
for the three months ended September 30, 1999 from $43,000 for the prior
comparable period. Communications expense increased by $86,000, or 66.2%, to
$216,000 for the nine months ended September 30, 1999 from $130,000 for the
prior comparable period. This increase was primarily attributable to
increased usage associated with new offices and the Company's business
expansion strategy.
Occupancy and equipment expense increased by $24,000, or 17.6%, to
$160,000 for the three months ended September 30, 1999 from $136,000 for the
prior comparable period. Occupancy and equipment expense increased by $158,000,
or 47.7%, to $489,000 for the nine months ended September 30, 1999 from
$331,000 for the prior comparable period. The increase is mainly attributable
to the opening of new offices and the Company's business expansion strategy.
Professional fees increased by $92,000, or 69.2%, to $225,000 for the
three months ended September 30, 1999 from $133,000 for the prior comparable
period. Professional fees increased by $464,000, or 241.7%, to $656,000 for
the nine months ended September 30, 1999 from $192,000 for the prior
comparable period. The increased use of legal services, independent audit
review services and marketing consultants is directly related to the
Company's business expansion strategy.
Travel and business development expense decreased by $21,000, or 30.0%,
to $49,000 for the three months ended September 30, 1999 from $70,000 for the
prior comparable period. Travel and business development expense increased by
$93,000, or 55.7%, to $260,000 for the
<PAGE>
nine months ended September 30, 1999 from $167,000 for the prior comparable
period due to increased travel related to business development activities.
Other operating expenses increased by $182,000, or 119.7%, to $334,000
for the three months ended September 30, 1999 from $152,000 for the prior
comparable period. Other operating expenses increased by $548,000, or 168.1%,
to $874,000 for the nine months ended September 30, 1999 from $326,000 for
the prior comparable period. This increase primarily reflects increases in
advertising, telephone, postage, printing and filing fees.
The income tax benefit increased by $174,000, or 280.6% to a tax
benefit of $236,000 for the three months ended September 30, 1999 from
$62,000 for the prior comparable period. The income tax benefit increased by
$229,000, or 224.5%, to a tax benefit of $331,000 for the nine month period
ended September 30, 1999 from $102,000 for the prior comparable period. The
income tax benefit is due to a increase in loss from continuing operations
for the nine months ended September 30, 1999.
The net loss increased by $233,000, or 100.9%, to $464,000 for the three
months ended September 30, 1999 from a net loss of $231,000 for the prior
comparable period. The net loss increased by $505,000, or 165.6%, to $810,000
for the nine months ended September 30, 1999 from a net loss of $305,000 for
the prior comparable period. The change was a result of items discussed above.
<PAGE>
YEAR 2000 SOFTWARE ISSUE
As the Year 2000 approaches, existing software programs and operating
systems must be reviewed to determine if they can accommodate information that
employs dates after December 31, 1999. As of September 30, 1999, we have
incurred direct Year 2000 readiness costs of approximately $152,000 to cover
assessment of systems, internal testing, point-to-point testing, training, and
replacement and modification of existing systems. Our Year 2000 readiness costs
consist of direct expenses incurred with respect to software, consulting, and
employee time and readiness expenses for upgraded computers, software and
communication systems.
We estimate our Year 2000 costs during 1999 at approximately $227,000.
We estimate that our total Year 2000 readiness costs will be approximately
$339,000.
Our management has prepared a written plan detailing our software and
operating systems readiness issues for the Year 2000. The plan identifies
mission-critical and non-mission critical operating systems. Working with our
hardware and software vendors and other third parties to prepare for the Year
2000, we substantially completed necessary hardware and software renovations
during the second quarter of 1999. We tested our systems during the third
quarter of 1999 to determine the effect of our readiness efforts, and we are
currently working with our hardware and software vendors and other third parties
to complete our Year 2000 contingency plan.
Our Year 2000 readiness plan involves four phases:
PHASE I-ASSESSMENT. This phase involved the identification of all
systems that are date dependent. This phase was substantially completed during
the first quarter of 1998.
PHASE II-RENOVATION. This phase involved the identification and
replacement of mission critical systems which we were unable to update or
certify as compliant. This phase commenced in the first quarter of 1998 and was
substantially completed in the second quarter of 1999. Remaining activities
relate to monitoring and following up with third parties as part of our
contingency planning activities in Phase IV.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The Company's assets are reasonably liquid with a substantial majority
consisting of cash and cash equivalents, investment securities, and
receivables from other broker-dealers and the company's clearing agent, all
of which fluctuate depending upon the levels of customer business and trading
activity. Receivables from broker-dealers and the Company's clearing agent
turnover rapidly. Both the Company's total assets as well as the individual
components as a percentage of total assets may vary significantly from period
to period because of changes relating to customer demand, economic and market
conditions, and proprietary trading strategies. The Company's total assets as
of September 30, 1999 were $9,263,000.
Failure to maintain the required net capital may subject a firm to
suspension or expulsion by the NASD, the SEC and other regulatory bodies and
ultimately may require its liquidation. In 1995 and 1998, The Chapman Co. and
Mr. Chapman entered into consent agreements with the NASD regarding alleged
violations of the net capital rules in late 1993 and early 1994 and early
1996, respectively. The 1998 consent agreement also addressed alleged
violations of Rule 144 under the Securities Act with respect to the alleged
1996 net capital violation. The Chapman Co. and Mr. Chapman were censured and
jointly fined $30,000, and Mr. Chapman was suspended from association with
The Chapman Co. for 10 days pursuant to the 1995 consent agreement. Pursuant
to the 1998 consent agreement, The Chapman Co. was censured and fined $7,500,
and Mr. Chapman was censured, fined $7,500 and required to requalify by
examination as a Financial and Operations Principal. Mr. Chapman has not
requalified as a Financial and Operations Principal. The Chapman Co. has
exceeded all net capital requirements since such alleged violations.
The Chapman Co., the Company's wholly-owned broker-dealer subsidiary,
is subject to the net capital rules of the NASD. As such, The Chapman Co. is
subject to certain restrictions on the use of capital and its related
liquidity. The net capital position of The Chapman Co. as of September 30,
1999 was $355,000, which was $105,000 in excess of its minimum NASD net
capital requirement.
PLAN OF MERGER
Subsequent to September 30, 1999, the Company signed a merger agreement which is
subject to stockholders approval and the completion of an initial public stock
offering of common stock by eChapman.com, among other things, to merge into a
wholly owned subsidiary of eChapman.com. This merger would result in the
Company, Chapman Capital Management Holdings, Inc. and Chapman Insurance
Holdings, Inc. becoming wholly-owned subsidiaries of eChapman.com. eChapman is
a newly formed corporation designed to bring these companies together to take
advantage of the unique opportunities presented by the growth of the Internet.
eChapman.com is owned by the major stockholder of the Company.
This planned merger and the operations of eChapman.com after the merger are
subject to certain risks. The negative impact from these risks could have
material adverse effects on the future results of operations and financial
position of the Company. These risk items include the fact that eChapman.com
has not launched a web site and has no internet-related operating history;
the web site must be designed, developed, hosted by a service provider and
marketed; eChapman.com must raise at least $20 million from its planned
public offering to complete this merger; the eChapman.com brand must be
successful in order for it to attract users, advertisers and strategic
partners; and the success of the "Domestic Emerging Markets" strategy through
the use of the internet.
On December 14, 1998, The Chapman Co. advanced to Chapman Limited
Partnership I $19,536 for payment of certain taxes and related payments,
interest, and penalties. On October 22, 1999, Chapman Holdings, Inc. advanced
the partnership $49,037 for payment of certain taxes and related payments. As
of September 30, 1999, all of these advances remained outstanding. Future
lease payments will be applied to such advances until repaid in full.
The Company's cash and cash equivalents were $1,775,000 as of September
30, 1999.
The Company's overall capital and funding needs are continually
reviewed to ensure that its capital base can support the estimated needs of its
business. These reviews take into account business needs as well as the
Company's regulatory capital requirements. The Company believes that its
capital structure is adequate for current operations.
<PAGE>
YEAR 2000 SOFTWARE ISSUE
As the Year 2000 approaches, existing software programs and
operating systems must be reviewed to determine if they can accommodate
information that employs dates after December 31, 1999. As of September 30,
1999, Chapman Holdings' Year 2000 readiness costs were approximately $115,000
to cover assessment of systems, internal testing, point-to-point testing,
training, replacement and modification of existing systems, and contingency
planning.
Chapman Holdings' estimates its Year 2000 readiness costs at
approximately $133,000. Chapman Holdings estimates that its total Year 2000
readiness costs will be approximately $230,000.
Chapman Holdings has prepared a written plan detailing Chapman
Holdings' software and operating systems readiness issues for the Year 2000.
The plan identifies mission-critical and non mission-critical operating
systems of Chapman Holdings. Working with its hardware and software vendors
and other third parties to prepare for the Year 2000, Chapman Holdings
substantially completed necessary hardware and software renovations during
the second quarter of 1999. We tested during the third quarter of 1999 to
determine the effect of our readiness efforts, and we are currently working
with our hardware and software vendors and other third parties to complete
our Year 2000 contingency plan.
Chapman Holdings' Year 2000 readiness plan involves four phases:
PHASE I--ASSESSMENT. This phase involved the identification of all
systems that are date dependent. This phase was substantially completed
during the first quarter of 1998.
PHASE II--RENOVATION. This phase involved the identification and
replacement of mission-critical systems which Chapman Holdings was unable to
update or certify as Y2K ready. This phase commenced in the first quarter of
1998 and was substantially completed in the second quarter of 1999. Remaining
activities relate to monitoring and following up with third parties as part
of our contingency planning activities in Phase IV.
PHASE III--TESTING. This phase involves testing all systems that are
date dependent and upgrading all non[cad 220]compliant systems. Chapman Holding
completed this phase during the third quarter of 1999.
PHASE IV--CONTINGENCY PLANNING. This phase involves an assessment of
all mission-critical systems for potential problems that would result from
Year 2000 related failures of software or hardware and also the development
of plans and strategies to continue operations should such failures occur.
The Chapman Co. has prepared an initial plan and will continue to refine and
expand it as required through the first quarter of 2000.
Within Chapman Holdings' Year 2000 readiness plan, systems are
identified as "mission-critical" and "non mission-critical". Systems were
identified as "mission critical" if the loss of the system, software or
facility would cause an immediate stoppage of activity or a significant
impairment of a core business area. Systems were determined to be non-Y2K
ready based on information from manufacturers. Systems were identified as
"not mission critical" if loss of the system, although inconvenient, would
not cause an immediate stoppage of activity or significant impairment of a
core business area. The following table summarizes Chapman Holdings' estimate
of the status of mission-critical elements of Chapman Holdings' Year 2000
readiness plan.
<TABLE>
<CAPTION>
NUMBER OF
NUMBER OF NUMBER OF CRITICAL
NUMBER OF CRITICAL CRITICAL SYSTEMS FOR
CRITICAL SYSTEMS SYSTEMS IN WHICH PHASE
Y2K PLAN PHASE SYSTEMS COMPLETED PROCESS NOT APPLICABLE
- -------------- ---------- ---------- ----------- --------------
<S> <C> <C> <C> <C>
Assessment............ 32 32 -- --
Renovation............ 32 23 -- 9
Testing............... 32 23 -- 9
Contingency Planning.. 32 -- 32 --
</TABLE>
Chapman Holdings has relationships with third parties that may have
computer systems that are not Year 2000 ready. Chapman Holdings has
identified the third parties upon which it relies for mission-critical
systems and has contacted such third parties to confirm that their systems
are Year 2000 ready. Responses from the majority of these vendors during the
first and second quarters indicated that they expected to reach readiness by
the third quarter of 1999. Chapman Holdings continues to monitor the progress
of its vendors and suppliers. Chapman Holdings' contingency plan calls for
the replacement, whenever feasible, of any vendors of mission critical
systems that have not certified readiness by September 30, 1999. As of
November 11, 1999, only four such vendors had not verified readiness. We have
identified alternative vendors in the event these vendors are not year 2000
ready.
While Chapman Holdings believes that it is taking prudent and
necessary action to become with Year 2000 requirements, there can be no
assurance that the Year 2000 issue will not result in information or
communications systems interruptions. Any such interruptions could be
expected to have a material adverse effect on Chapman Holdings' business,
financial condition, results of operations and business prospects and may
subject Chapman Holdings to liability to its clients. Chapman Holdings is
currently building upon its existing contingency plan in the event that
Chapman Holdings or third parties do not successfully complete their
readiness efforts, or if vendors or third parties controlling systems
critical to Chapman Holdings are unable to confirm that their systems will be
Year 2000 ready. These efforts may result in additional costs in excess of
current allocations and estimates.
<PAGE>
PART II
OTHER INFORMATION
ITEM 2- CHANGES IN SECURITIES AND USE OF PROCEEDS
On February 23, 1998, the Company's Registration Statement on Form SB-2
(File No. 333-43487) pertaining to its initial public offering of shares of the
Company's common stock, par value $0.001 (the "Offering") was declared
effective.
The Company has applied Offering proceeds in the amount of
approximately $3 million to expand net capital to participate in corporate and
government finance transactions, $384,000 to expand market-making and research
capabilities, $150,000 to implement the DEM strategy, $1,093,000 to expand sales
and marketing efforts, $1,234,000 to hire sales personnel to staff additional
sales offices and corporate finance staff to implement the DEM strategy and
$1,000,000 for working capital and general corporate purposes.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. Exhibits required by Item 601 of Regulation S-B:
Exhibit 10.1: Fully Disclosed Clearing Agreement between the Pershing
Division, Donaldson, Lufkin & Jenrette Securities
Corporation and The Chapman Co. dated March 16, 1999.
Exhibit 10.2: Agreement and Plan of Merger by and among
eChapman.com, Inc., CHI Merger Subsidiary, Inc. and the
Company dated November 15, 1999 (Filed as Exhibit 10.3
to eChapman.com, Inc. Registration Statement on Form SB-2
as filed with the Securities and Exchange Commission on
November 15, 1999 and hereby incorporated by reference)
Exhibit 27: Financial Data Schedule
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
CHAPMAN HOLDINGS, INC.
By: /s/ NATHAN A. CHAPMAN, JR.
----------------------------------------
Nathan A. Chapman, Jr.
President, Chairman of the Board and Director
/s/ DEMETRIS B. BROWN
----------------------------------------
Demetris B. Brown
Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
Date: November 15, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
10 Fully Disclosed Clearing Agreement between the Pershing Division,
Donaldson, Lufkin & Jenrette Securities Corporation and The Chapman Co.
dated March 16, 1999.
27 Financial Data Schedule
<PAGE>
Exhibit 10
FULLY DISCLOSED CLEARING AGREEMENT
OF
PERSHING DIVISION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
THIS AGREEMENT is made and entered into as of the March 16, 1999, by and between
the Pershing Division of Donaldson, Lufkin & Jenrette Securities Corporation
("Pershing"), a Delaware Corporation, and The Chapman Company ("Broker"), a
Delaware Corporation.
1.0 APPROVAL
This Agreement shall be subject to approval by the New York Stock
Exchange, Inc. ("NYSE") and by any other self-regulatory organization vested
with the authority to review or approve it. Pershing shall submit this Agreement
to the NYSE and Broker shall submit the Agreement to any other such organization
from which Broker is required to obtain approval. In the event of disapproval,
the parties shall bargain in good faith to achieve the requisite approval.
2.0 AGREEMENT
From the opening of business on the later of March 16, 1999, or the
effectiveness of the registration of Broker with the NASD, until the termination
of this Agreement as provided for in Paragraph 21 hereof, Pershing shall carry
the cash and margin accounts of the customers of Broker introduced by Broker to
Pershing, and accepted by Pershing, and shall clear transactions on a fully
disclosed basis for such accounts, in the manner and to the extent set forth in
this Agreement.
3.0 ALLOCATION OF RESPONSIBILITY
3.1 RESPONSIBILITIES OF THE PARTIES.
Pursuant to NYSE Rule 382, responsibility for compliance with all
applicable laws, rules, and regulations of the Securities and Exchange
Commission ("SEC"), the National Association of Securities Dealers, Inc.
("NASD"), the NYSE, and any other regulatory or self-regulatory agency or
organization shall be allocated between Pershing and Broker as set forth in this
Agreement. To the extent that a particular function is allocated to one party
under this Agreement, the other party shall supply that party with information
in its possession pertinent to the proper performance and supervision of that
function.
<PAGE>
3.2. RELATIONSHIP WITH CUSTOMERS.
Except as provided in Paragraph 26.11 of this Agreement, all
customers receiving services pursuant to this Agreement shall remain customers
of Broker. Pershing shall provide services under this Agreement to Broker only
to the extent explicitly required by specific provisions contained in this
Agreement and shall not be responsible for any duties or obligations not
specifically allocated to Pershing pursuant to this Agreement. Broker shall
enter into appropriate contractual arrangements with customers on its own
behalf, and such agreements shall make Broker, and not Pershing, responsible to
customers for the provision of services. Broker shall not be deemed to be an
agent of Pershing for any purpose, except to the limited extent expressly set
forth in paragraph 9.1.8 of this Agreement, nor shall Pershing be deemed to have
a fiduciary relationship with any of Broker's customers. Broker acknowledges
that Pershing does not control the business or operations of Broker.
4.0 REPRESENTATIONS AND WARRANTIES
4.1. BROKER. Broker represents and warrants that:
4.1.1 CORPORATION DULY ORGANIZED. Broker is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation.
4.1.2 REGISTRATION. Broker is duly registered and in good standing as a broker
dealer with the SEC and is a member firm in good standing of the NASD.
4.1.3 AUTHORITY TO ENTER AGREEMENT. Broker has all requisite authority, whether
arising under applicable federal or state law or the rules and regulations of
any regulatory or self-regulatory organization to which Broker is subject, to
enter into this Agreement and to retain the services of Pershing in accordance
with the terms of this Agreement.
4.1.4 SUBSTANTIAL COMPLIANCE WITH RULES AND REGULATIONS. Broker and each of its
employees is in substantial compliance with, and during the term of this
Agreement shall remain in substantial compliance with, the registration,
qualification, capital, financial reporting, customer protection, and other
requirements of every self-regulatory organization of which Broker is a member,
of the SEC, and of every state to the extent that Broker or any of its employees
is subject to the jurisdiction of that state.
4.1.5 NO PENDING ACTION, SUIT, INVESTIGATION OR INQUIRY. Broker has disclosed to
Pershing every action, suit, investigation, inquiry, or proceeding (formal or
informal) pending or threatened against or affecting Broker, any of its
affiliates, or any officer, director, or general securities principal or
financial and operations principal of Broker, or their respective property or
assets, by or before any court or other tribunal, any arbitrator, any
governmental authority, or any self-regulatory organization of which any of them
is a member. Broker shall notify Pershing promptly, but in any event within
three business
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<PAGE>
days, of the initiation of any such action, suit, investigation, inquiry, or
proceeding that may have a material impact on the capital of Broker.
4.2 PERSHING. Pershing represents and warrants that:
4.2.1 CORPORATION DULY ORGANIZED. Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") is a corporation duly organized, validly existing, and in
good standing under the laws of the state of Delaware.
4.2.2 REGISTRATION. DLJ 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 and the
NASD.
4.2.3 AUTHORITY TO ENTER AGREEMENT. DLJ has all requisite authority, whether
arising under applicable federal or state law, or the rules and regulations of
any regulatory or self-regulatory organization to which DLJ is subject, to enter
into this Agreement and provide services in accordance with the terms of this
Agreement.
4.2.4 COMPLIANCE WITH REGISTRATION. Pershing and each of its employees is in
substantial compliance with, and during the term of this Agreement shall remain
in substantial compliance with the registration, qualification, capital,
financial reporting, customer protection, and other requirements of every
self-regulatory organization of which Pershing is a member, of the SEC, and
every state.
5.0 ESTABLISHING AND ACCEPTING NEW ACCOUNTS
5.1 ACCEPTANCE OF NEW ACCOUNTS. Broker shall be responsible for opening and
approving new accounts.
5.2 MAINTENANCE OF ACCOUNT INFORMATION. Pershing may rely without inquiry on the
validity of all customer information furnished to it by Broker.
5.3 PERSHING OPERATIONS MANUAL. Broker acknowledges receipt and familiarity with
the Pershing "Customer Reference Guide" and agrees to familiarize itself with
any modifications or supplements to such guide that may be issued from time to
time.
6.0 SUPERVISION OF ORDERS AND ACCOUNTS
6.1 RESPONSIBILITY FOR COMPLIANCE. Broker shall be solely responsible for
compliance with Suitability, "Know Your Customer" rules and other requirements
of federal and state law and regulatory and self-regulatory rules and
regulations governing transactions and accounts. Possession by Pershing of
surveillance records, exception reports, or other similar data shall not
obligate Pershing to establish procedures for dealing with such material or to
review or be aware of their contents. Pershing shall not be required to make any
investigation into the facts surrounding any transaction that it may execute or
clear for Broker or any customer of Broker.
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<PAGE>
6.2 COMPLIANCE PROCEDURES. Broker agrees to diligently supervise compliance with
all applicable laws, rules, and regulations of the SEC, NASD, NYSE, and any
other regulatory or self-regulatory agency or organization having jurisdiction
over Broker through the use of a compliance manual or other written procedures.
Broker shall review transactions and accounts to assure compliance with
prohibitions against manipulative practices and insider trading and other
requirements of federal and state law and applicable regulatory and
self-regulatory rules and regulations to which Broker or its customer are
subject. Without limiting the above, Broker shall be responsible for compliance
with the supervisory requirements in Section 15(b)(4) of the Securities Exchange
Act of 1934, as amended, NASD Rule 3010, NYSE Rules 342, 431 and 351, and
similar rules adopted by any other regulatory or self-regulatory agency or
organization, to the extent applicable.
6.3 KNOWLEDGE OF CUSTOMER'S FINANCIAL RESOURCES AND INVESTMENT OBJECTIVES.
Broker shall comply with Rule 405(l) of the NYSE or comparable requirements of
similar rules of any other self-regulatory organization to which Broker is
subject. Broker shall obtain all essential facts relating to each customer, each
cash and margin account, each order, and each person holding a power of attorney
over any account, in order to assess the suitability of transactions when
required by applicable rules, the authenticity of orders, signatures,
endorsements, certificates, or other documentation, and the frequency of
trading. Broker warrants that, to the best of its knowledge, it will not open or
maintain accounts for persons who are minors or who are otherwise legally
incompetent and that it will comply with NYSE Rule 407 and other laws, rules, or
regulations that govern the manner and circumstances in which accounts may be
opened or transactions authorized.
6.4 FURNISHING OF INVESTMENT ADVICE. Broker shall be solely responsible for any
recommendation or advice it may offer to its customers.
6.5 DISCRETIONARY ACCOUNTS. Broker shall be solely responsible for obtaining
customer approval for and supervising discretionary accounts.
6.6 OPTION ACCOUNTS. Before engaging in option trading for any customer, Broker
shall deliver to the customer a current disclosure statement of the Options
Clearing Corporation and any effective supplements. Broker shall obtain the
required signatures on all option agreements, shall obtain proper approval of
the opening of all option accounts and shall otherwise comply with all
applicable laws, rules and regulations relating to options accounts and option
trading. Broker shall deliver to Pershing a copy of a signed option agreement
for each customer approved by it for options trading in a form acceptable to
Pershing.
6.7 ACCOUNTS OF EMPLOYEES OF MEMBER ORGANIZATIONS, SELF-REGULATORY
ORGANIZATIONS, AND FINANCIAL INSTITUTIONS. Broker shall give required notices
and obtain required approvals of employers in each case in which a customer is
an employee of a broker-dealer, a self-regulatory organization, or a financial
institution.
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<PAGE>
7.0 EXTENSION OF CREDIT
7.1 PRESUMPTION OF CASH ACCOUNT. Pershing 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, and payment for those
transactions will be required in the manner applicable to cash transactions,
unless, on or prior to settlement, Broker has furnished Pershing with a properly
executed and binding customer margin agreement and consent to loan of securities
in a form acceptable to Pershing.
7.2 MARGIN REQUIREMENTS. All margin accounts introduced by Broker shall be
subject to Pershing's margin requirements as in effect from time to time.
Pershing reserves the right (but shall not be obligated) to refuse to accept any
transaction in a margin account or group of accounts without the actual receipt
of the necessary margin and to impose a higher margin requirement for a
particular account when, in Pershing's discretion, the past history or nature of
the account or other factors or the securities held in it warrant such action.
In all instances, Broker shall be responsible for determining the amount of
credit suitable for every account and may require higher margin than imposed by
Pershing for any particular account, group of accounts, or all accounts
introduced by Broker to Pershing.
7.3 MARGIN MAINTENANCE AND COMPLIANCE WITH REGULATION T AND SEC RULE 15c3-3(m).
7.3.1 INITIAL MARGIN. Broker shall be responsible for the initial margin
requirement for any transaction until such initial margin has been received by
Pershing in acceptable form.
7.3.2 MARGIN CALLS. After the initial margin for a transaction has been
received, subsequent margin calls may be made by Pershing at its discretion.
Pershing 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, Pershing reserves the right to collect the
amount due directly from Broker's customer. Broker agrees to cooperate with
Pershing in complying with and obtaining margin in response to such calls. If
any customer fails to meet a maintenance call, Broker shall be liable to
Pershing for any loss or damage it may incur unless the Broker establishes that
the loss or damage was directly attributable to Pershing's failure to give
proper and timely notification to Broker or customer.
7.3.3 ACTIONS UPON FAILURE TO MEET MARGIN CALLS OR DELIVER SECURITIES. In the
event that satisfactory margin is not provided within the time specified by
Pershing, or securities sold are not delivered as required, Pershing may take
such actions as Pershing deems appropriate, including but not limited to the
sale or purchase of securities in connection with the account. Broker shall
cooperate with Pershing by entering appropriate orders to buy-in or sell-out
securities in any such instance. Compliance with a request to withhold
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<PAGE>
action shall not be deemed a waiver by Pershing of any of its rights under this
Agreement, including but not limited to the right to close out a contract or
position if in Pershing's judgment changing conditions render such action
advisable, with or without prior notification to customer or Broker.
7.4 CHARGING OF INTEREST AND DISCLOSURES PURSUANT TO RULE 10b-16. Interest
charged with respect to debit balances in customers' accounts shall be
determined in accordance with the fully disclosed pricing schedule attached to
this Agreement. Broker shall send each margin customer a written disclosure
statement, in a form acceptable to Pershing, at the time of the opening of a
margin account as required by SEC Rule 10b-16.
7.5 UNSECURED DEBITS OR UNSECURED SHORT POSITIONS. Pershing shall charge against
the account of Broker an amount equal to the value of any unsecured debit or
short position (on a "mark to market" basis) in a customer account if that
position has not been promptly resolved by payment or delivery. Any remaining
debit shall be charged against Broker's Deposit Account and be considered a
claim against Broker pursuant to Paragraph 19 of this Agreement.
8.0 MAINTENANCE OF BOOKS AND RECORDS
8.1 STOCK RECORDS. Pershing shall maintain stock records and other prescribed
books and records of all transactions executed or cleared through it in
accordance with generally accepted practices in the securities industry.
8.2 REGULATORY REPORTS AND RECORDS. Broker shall prepare, submit, and maintain
copies of all reports, records, and regulatory filings required of Broker by any
entity that regulates it, including, but not limited to, copies of all account
agreements and similar documentation obtained pursuant to paragraph 5.0 of this
Agreement and any reports and records required to be made or kept under the
Currency and Foreign Transactions Reporting Act of 1970, the Money Laundering
Act of 1986, and any rules and regulations promulgated pursuant thereto. To the
extent that Pershing is required to prepare or submit any reports or records by
any entity that regulates it, Broker shall cooperate in providing Pershing with
any information needed in order to prepare such reports or records.
8.3 AUDIOTAPING OF TELEPHONE CONVERSATIONS. Broker understands that for quality
control, dispute resolution or other business purposes, Pershing records some or
all telephone conversations between Broker and Pershing. Broker hereby consents
to such recording and will inform its employees, representatives and agents of
this practice. It is further understood that all such conversations are deemed
to be solely for business purposes.
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<PAGE>
9.0 RECEIPT AND DELIVERY OF FUNDS AND SECURITIES
9.1 RECEIPT AND DELIVERY OF FUNDS AND SECURITIES.
9.1.1 CASHIERING FUNCTIONS. Pershing shall perform normal and reasonable
cashiering functions for customer accounts introduced by Broker. These functions
shall include receipt and delivery of securities purchased, sold, borrowed, and
loaned; receipt and payment of funds owed by or to customers; and provision of
custody for securities and funds. Broker shall provide Pershing with the basic
data and documents that are necessary or appropriate to permit Pershing to
perform its obligations under this Paragraph, including but not limited to
copies of records documenting receipt of customers' funds and securities
received directly by Broker. Such data and documents must be compatible with the
requirements of Pershing's data processing systems.
9.1.2 PURCHASES. Broker shall be responsible for purchases made for customers
until actual and complete payment has been received by Pershing. When payment is
tendered to Pershing in the form of a check, Broker shall remain responsible
until the check has been paid and the proceeds actually received and finally
credited to Pershing (without any subsequent chargeback) by its bank. Pershing
shall use due diligence in depositing any checks that it receives directly from
customers of Broker.
9.1.3 SALES. Broker shall be responsible for sales until Pershing has received,
in acceptable form, the securities involved in a transaction. If Pershing does
not receive delivery of securities in an acceptable form, Pershing may buy-in
all or part of the securities for the accounts of the customer of Broker or
Broker.
9.1.4 WHEN ISSUED AND DELAYED DELIVERY TRANSACTIONS. In the case of the purchase
or sale of securities on a "when issued" basis, and in the case of a purchase or
sale where distribution or delivery is otherwise delayed (except pursuant to a
margin agreement), Broker shall remain responsible, as set forth in this
Agreement, until necessary and satisfactory payment of funds or delivery of
securities, as required by the margin rules, has been received by Pershing.
9.1.5 FUNDS AND SECURITIES RECEIVED BY BROKER. Broker shall promptly deposit
with Pershing funds or securities received by Broker from its customers,
together with such information as may be relevant or necessary to enable
Pershing to record such remittances and receipts in the respective customer
accounts.
9.1.6 FAILURE TO SETTLE OR PAY. In the event of a failure to timely deposit
required funds or securities, Pershing may take appropriate remedial action.
Without waiving or otherwise limiting its right to take other remedial action,
Pershing may at its option charge interest at rates as agreed in Schedule A to
this Agreement. Broker may pass such charges on to its customers but Broker
remains responsible therefor until actually paid.
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<PAGE>
9.1.7 SETTLEMENT AND DELIVERY. Broker shall obtain each customer's agreement to
accept partial deliveries and to abide by other clearance arrangements as may be
directed by any exchange or association. With respect to any settlements which
involve the drafting of securities, draft charges, including interest expense,
will be borne by Broker.
9.1.8 CHECK WRITING AUTHORITY. Pershing may, but is not required to, authorize
certain of Broker's employees to sign checks to Broker's customers for amounts
due to, and requested by them, with respect to their accounts. Broker shall
designate in writing the names of any employees it wishes to receive the
authorization described in this subparagraph. All checks must be signed by two
employees who have received authorization from Pershing. No check or checks
totaling more than $100,000 shall be provided to any customer by Broker on the
same business day. All expenses incurred in connection with the issuance of
checks under the authority described in this subparagraph shall be charged to
Broker. Broker remains responsible for the disbursement and delivery of such
checks to its customers. Any lien on the customer's property granted by the
customer to Broker or Pershing shall extend to any funds which may be segregated
in a separate account in connection with the exercise of the authority described
in this subparagraph.
9.2. TRANSFER OF SECURITIES AND ACCOUNTS. Upon receiving written or oral
instructions from Broker, or written instructions from a customer, Pershing
shall make reasonable efforts to effectuate such transfers of securities or
accounts as may be requested. Whenever practicable, Pershing shall first notify
the Broker before acting on a customer's written request.
9.3 RESTRICTED AND CONTROL STOCK REQUIREMENTS. Broker shall be responsible for
determining whether any securities held in Broker's or its customer accounts are
restricted or control securities as defined by applicable laws, rules, or
regulations. Broker is responsible for assuring that orders executed for such
securities comply with such laws, rules, and regulations.
9.4 PAYMENT OF DIVIDENDS AND HANDLING OF EXCHANGE OR TENDER OFFERS, RIGHTS,
WARRANTS AND REDEMPTIONS. Whenever Pershing has been instructed to retain
custody of the securities in any account, Pershing may hold the securities in
the customer's name, the name of Pershing or its nominee, or in the names of
nominees of any depository used by Pershing. Pershing shall perform the services
required in connection with holding the securities in custody in each account,
including (1) collection and payment of dividends and interest; (2) transmittal
and handling (through Broker) of tenders or exchanges pursuant to tender offers
and exchange offers; (3) transmittal of proxy materials and other shareholder
communications if Pershing is appropriately compensated; and (4) handling of
exercises or expirations of rights, options, warrants and redemptions.
9.5 COD-ORDERS. Broker shall not introduce any retail or individual accounts
requiring settlement on a "delivery versus payment" or "receive versus payment"
basis without the prior written approval of Pershing. If such approval has been
given, Broker shall arrange
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for timely settlement of all such transactions. Broker shall be responsible for
complying with the requirements of NYSE Rule 387 with respect to those
transactions, except that Pershing shall be responsible for delivering
confirmations pursuant to NYSE Rule 387.
10.0 SAFEGUARDING OF FUNDS AND SECURITIES
Except as otherwise provided in this Agreement, Pershing shall be
responsible for the safekeeping of all money and securities received by it
pursuant to this Agreement. However, Pershing will not be responsible for any
funds or securities delivered by a customer to Broker until such funds or
securities are actually received by Pershing or deposited in bank accounts
maintained by Pershing.
11.0 CONFIRMATIONS AND STATEMENTS
11.1 PREPARATION AND TRANSMISSION OF CONFIRMATIONS AND STATEMENTS. Pershing
shall prepare confirmations and summary periodic statements and shall, to the
extent required, transmit them to customers and Broker in a timely fashion
except to the extent Broker has agreed to transmit confirmations to customers.
Confirmations and statements shall be prepared on forms disclosing that the
account is carried on a fully disclosed basis for the Broker in accordance with
applicable rules, regulations and interpretations. Broker will have the ultimate
regulatory responsibility for compliance with the prospectus delivery
requirements of the Securities Act of 1933, as amended, regardless of its
retention of a prospectus fulfillment service to perform delivery of same.
11.2 EXAMINATION AND NOTIFICATION OF ERRORS. Broker shall examine promptly all
confirmations, statements, and other reports provided to Broker by Pershing.
Broker must promptly notify Pershing of any error claimed by Broker in any
account. If Broker fails to notify Pershing promptly of any error the existence
of which was, or should reasonably have been, discoverable by review of
confirmations, statements, and reports provided to Broker by Pershing, Broker
shall be deemed to have waived its right to make any claim against Pershing with
respect to such error.
12.0 ACCEPTANCE AND EXECUTION OF TRANSACTIONS
12.1 RESPONSIBILITY TO ACCEPT OR REJECT TRADES. Pershing shall execute
transactions in customers' accounts and release or deposit money or securities
to or for accounts only upon Broker's instructions. Pershing reserves the right
to accept written or oral transaction orders from Broker's customers in
circumstances where it determines that the customers are unable to execute those
transactions through Broker. Notwithstanding any instructions to the contrary,
Pershing may, after giving reasonable notice, (i) refuse to confirm a
transaction or cancel a confirmation, (ii) reject a delivery or receipt of
securities or money, (iii) refuse to clear a trade executed by Broker, or (iv)
refuse to execute a trade for the account of a customer or Broker.
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12.2 RESPONSIBILITY FOR ERRORS IN EXECUTION. Broker shall be responsible for
transmission to Pershing of all customer orders and for any errors in the
Broker's recording or transmission of such orders. Pershing shall be responsible
for any errors it might make in the further transmission and execution of such
orders after their receipt, in proper and complete form, from Broker.
12.3 SETTLEMENT OF CONTRACTS AND TRANSACTION. Unless otherwise agreed in
writing, Pershing shall have no obligation to settle contracts and transactions
in securities (i) between Broker and other brokers and dealers, (ii) between
Broker and its customers and (iii) between Broker and third persons.
13.0 OTHER OBLIGATIONS AND RESPONSIBILITIES OF BROKER
13.1 OTHER CLEARING AGREEMENTS. During the term of this Agreement, Broker shall
not enter into any other similar agreement or obtain the services contemplated
by this Agreement from any other party or supply the services contemplated by
the Agreement without the prior written approval of Pershing.
13.2 DISCIPLINARY ACTION, SUSPENSION, OR RESTRICTION. If Broker becomes subject
to disciplinary action, suspension, or restriction by a federal or state agency,
stock exchange, or regulatory or self-regulatory organization having
jurisdiction over Broker or Broker's securities or commodities business, Broker
shall notify Pershing immediately, orally and in writing, and provide Pershing a
copy of any decision relating to such action, suspension, or restriction. Broker
shall reimburse Pershing for the fees and expenses associated with any legal
advice Pershing may seek with respect to the effect of such action, suspension,
or restriction on the rights and obligations of Pershing under this Agreement..
Pershing may take any action it reasonably deems to be necessary (i) to assure
that it will continue to comply with all applicable legal, regulatory, and
self-regulatory requirements, notwithstanding such action, suspension, or
restriction, and (ii) to comply with any requests, directives, or demands made
upon Pershing by any such federal or state agency, stock exchange, or regulatory
or self-regulatory organization.
13.3 PROVISION OF FINANCIAL INFORMATION. Broker shall furnish Pershing copies of
FOCUS Reports, financial statements for the current fiscal year, the executed
Forms X-17a-5 (Parts I and IIA) filed with the SEC, any amendments to Broker's
Form BD, and any other regulatory or financial reports Pershing may from time to
time require. Broker shall provide such reports to Pershing at the time Broker
files such reports with its primary examining authority. Broker shall also
notify Pershing in advance of withdrawals of more than 10% of its net capital.
13.4 FIDELITY BOND. Broker shall maintain throughout the term of this Agreement
fidelity insurance coverage in at least the minimum amount required under NASD
rules.
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Pershing may require that Broker obtain additional fidelity insurance coverage
if it reasonably determines that such coverage is necessary to assure Broker's
performance of its obligations under this Agreement.
13.5 EXECUTING BROKERS. If Broker wishes to act as an "Executing Broker" as such
term is understood in that certain letter dated January 25, 1994 from the
Division of Market Regulation of the Securities and Exchange Commission, as the
same may be amended, modified or supplemented from time to time (the "No-Action
Letter") then all terms herein shall have the same meaning as ascribed thereto
either in the Agreement or in the No-Action Letter as the sense thereof shall
require. Broker may, from time to time, execute trades (either directly or
through Pershing) for Prime Brokerage Accounts in compliance with the
requirements of the No-Action Letter. (The No-Action Letter requires, INTER ALIA
that a contract be executed between Pershing and Prime Broker, and between
Broker and Prime Brokerage Customer prior to the transaction of any business
hereunder). Broker shall promptly notify Pershing, but in no event later than
5:00 p.m. New York time of trade date in a mutually acceptable fashion, of such
trades in sufficient detail for Pershing to be able to report and transfer any
trade executed by Broker on behalf of a Prime Brokerage Account to the relevant
Prime Broker. Broker understands and agrees that if Prime Broker shall disaffirm
or "dk" any trade executed by Broker on behalf of a Prime Brokerage Account;
Broker shall open an account for such Prime Brokerage Account in its range of
accounts and shall transfer or deliver the trade to such account at the risk and
expense of Broker to the same extent as for any account introduced by Broker
pursuant to the Agreement. Broker understands and agrees that all Prime
Brokerage Accounts shall be conducted in accordance with the requirements of the
No-Action Letter and any relevant agreement between Broker and a Prime Brokerage
Customer, or between Pershing and relevant Prime Broker. Broker further agrees
to supply Pershing with such documents, papers and things, which from time to
time are reasonably required by Pershing to carry out the intention of this
Paragraph. Broker agrees that it shall know its customer, obtain appropriate
documentation, including new account form, conduct its own credit check and
determine the availability of shares for any short sales. Broker shall maintain
facilities to clear any disaffirmed trades.
14.0 OTHER OBLIGATIONS AND RESPONSIBILITIES OF PERSHING
14.1 USE OF THIRD PARTY SERVICES. Pershing 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 pricing services or proxy mailing services) superfluous
assigned to Pershing under this Agreement. If any such service bureau fails to
perform an assigned function accurately, in accordance with specifications, or
within the customary time periods, Pershing shall cause the service bureau to
correct any error in its next regularly scheduled processing operation and to
deliver any overdue work as soon as reasonably practicable. Except as stated in
this subparagraph, Pershing shall not be responsible for any losses, damages,
liability, or expenses claimed by Broker or its customers arising from any such
failure
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beyond the amount of such losses, damages or expense which Pershing is able to
recover pursuant to the terms of its agreement with such service bureau.
14.2 BACKUP WITHHOLDING. Broker hereby agrees to take necessary measures to
comply with the backup withholding requirements of Section 3406 and the
nonresident alien withholding requirements of Section 1441 of the Internal
Revenue Code of 1986, as amended, with respect to its customer accounts. Broker
agrees to furnish to Pershing in writing or by electronic transmission any tax
information in its possession relating to each customer account transferred to
Pershing and to each future customer (including the customer's taxpayer
identification number and any certifications provided by the customer on IRS
Forms W-9, W-8, or 1001 or any authorized substitute) and agrees that Pershing
may rely on such information. Pershing agrees to notify Broker of any account
not in compliance with such back-up withholding requirements. Broker hereby
authorizes Pershing to employ any procedures permitted under applicable law or
regulation to achieve compliance with withholding obligations under the federal
income tax law, including procedures pertaining to backup withholding on orders
to purchase or sell securities which are received from customers by telephone or
electronic transmission.
15.0 SERVICES FOR WHICH PERSHING IS NOT RESPONSIBLE
Unless otherwise expressly agreed in writing, Pershing shall not
provide nor be responsible for providing any of the following services:
15.1 Accounting, bookkeeping, record-keeping, cashiering, or other services
involving commodity transactions, or any other transactions not involving
securities; or any matter not contemplated by the Agreement.
15.2 Preparation of Broker's payroll records, financial statements, or any
analysis thereof.
15.3 Preparation or issuance of checks in payment of Broker's expenses, other
than expenses incurred by Pershing on behalf of Broker pursuant to this
Agreement.
15.4 Payment of commissions to Broker's sales personnel.
16.0 LIABILITY OF PERSHING
16.1 PERSHING INDEMNIFICATION. In addition to any other obligations it may
possess under other provisions of this Agreement, Pershing shall indemnify,
defend, and hold harmless Broker from and against all claims, demands,
proceedings, suits, actions, liabilities, expenses, attorney's fees, and costs
in connection therewith arising out of any reckless, dishonest, fraudulent, or
criminal act or omission on the part of any of its officers or employees with
respect to the services provided by Pershing under this Agreement.
Notwithstanding the foregoing, Pershing shall have no liability to any of
Broker's
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customers for any loss suffered by any customer. Pershing's liability will be
only to Broker and then only to the extent expressly set forth in this
Agreement.
16.2 DEFENSE OF THIRD PARTY CLAIMS. If, within 10 days after receiving written
notice of any claim, demand, suit, proceeding, or action with respect to which
Broker may have any colorable claims to indemnification under this Agreement,
Pershing shall fail to institute the defense of Broker in connection with such
claim, demand, suit, proceeding, or action, or if thereafter Pershing shall fail
diligently to pursue such defense, Broker shall have the right to defend such
action or settle such action. The reasonable costs and expenses, including
attorney's fees, associated with such a defense or settlement shall be borne by
Pershing. The exercise of the right to participate in or assume the
responsibility for any such defense shall not limit in any way Broker's right to
indemnification under this Paragraph.
16.3 DAMAGES. Pershing shall not be liable for special, indirect, incidental,
consequential or punitive damages which Broker, a customer of Broker, or any
other third party may incur or experience, whether such damages are incurred or
experienced as a result of entering into or relying on this Agreement or
otherwise, even if Pershing has been advised of the possibility of such damages.
Broker and Pershing each agree not to assist any claim for punitive damages
against the other.
16.4 PERSHING RIGHT TO COMPETE. Nothing in this Agreement shall be deemed to
restrict in any way the right of Pershing or any affiliate of Pershing to
compete with Broker in any or all aspects of Broker's business.
17.0 LIABILITY OF BROKER
17.1 BROKER INDEMNIFICATION. In addition to any other obligations it may possess
under other provisions of this Agreement, Broker shall indemnify, defend, and
hold harmless Pershing, and any controlling person of Pershing, from and against
all claims, demands, proceedings, suits, and actions and all liabilities,
expenses, attorney's fees (including fees and costs incurred in enforcing its
right to indemnification), and costs in connection therewith arising out of one
or more of Broker's or any of its employee's negligent, dishonest, fraudulent or
criminal act or omission or any of the following:
17.1.1 FAILURE TO MAKE PAYMENT OR DELIVER SECURITIES. Failure of Broker or a
customer of Broker to make any payment or deliver any securities when due. A
check received by Pershing from a customer shall not constitute payment until it
has been paid and the proceeds are actually received and finally credited to
Pershing (without any subsequent chargeback) by its bank.
17.1.2 MARGIN CALLS. Failure of a customer to meet any initial margin call or
any maintenance call, except that Pershing shall be responsible for the portion
of any such loss or damage that Broker establishes was directly attributable to
Pershing's failure to give notification to the Broker as required in paragraph
7.2 of this Agreement
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17.1.3 BROKER'S FAILURE TO PERFORM. Failure of Broker to perform any duty,
obligation, or responsibility with respect to customer accounts as set forth in
this Agreement. Broker's indemnification obligation under this subparagraph
shall not be affected by the participation of Pershing or any person controlling
it or controlled by it within the meaning of the Securities Exchange Act of
1934, as amended, in any transaction giving rise to such an obligation, unless
such participation constitutes recklessness, fraud, or criminal conduct.
17.1.4 IMPROPER CONDUCT BY AGENTS. Any negligent, dishonest, fraudulent, or
criminal act or omission on the part of any of Broker's officers, directors,
employees or agents.
17.1.5 FAILURE OF A CUSTOMER TO PERFORM OBLIGATIONS. Any failure by any of
Broker's customers to perform any commitment or obligation with respect to a
transaction carried by Pershing under this Agreement, whether or not such
failure was under the control of Broker.
17.1.6 CUSTOMER CLAIMS AND DISPUTES. Any claim or dispute between Broker and a
customer with respect to services provided under this Agreement, including but
not limited to any claim or dispute concerning the validity of a customer order
in the form the order was transmitted to Pershing by Broker and any claim
arising in connection with Pershing's guarantee of any signature of any customer
of Broker.
17.1.7 WARRANTIES. Any adverse claim with respect to any security delivered or
cleared by Pershing, including a claim of a defect in title with respect to
securities that are alleged to have been forged, counterfeited, raised or
otherwise altered, or if they are alleged to have been lost or stolen. The
parties agree that Pershing shall be deemed to be an intermediary between Broker
and customer and shall be deemed to make no warranties other than as provided in
Section 8-306(3) of the Uniform Commercial Code.
17.1.8 DEFAULT OF THIRD PARTY BROKER. Any default by a third party broker with
whom the Broker deals on a principal or agency basis in a transaction either not
executed by Pershing or not cleared by Pershing even if permitted by Pershing as
provided herein.
17.1.9 CHECK SIGNING. Any negligence, fraud, malfeasance, or error of any
employee of Broker with respect to the use of the checksigning authority granted
under paragraph 9.1.8 of this Agreement.
17.1.10 PRIOR SELF-CLEARING ARRANGEMENTS. Any guarantee, indemnification, or
hold harmless agreement in connection with Broker's business or customers that
Pershing may provide to the National Securities Clearing Corporation, the
Depository Trust Company, or any other clearing, depository, or self-regulatory
organization with respect to transactions self-cleared by Broker prior to
transfer of such functions to Pershing.
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17.1.11 BREACH OF WARRANTY BY BROKER. Any breach by Broker of any representation
or warranty made by it under this Agreement.
17.1.12 DEPOSIT OF CHECKS TO CUSTOMER ACCOUNTS. Any failure to exercise due
diligence in reviewing checks received from customers to insure that same are in
proper form, or in the issuance of instructions to Pershing regarding the
accounts into which checks are to be deposited.
17.1.13 ASSETS NOT HELD IN BROKERAGE ACCOUNT. Any claim asserted against
Pershing alleging the inaccuracy of any information appearing on Broker's
customer brokerage account statements with respect to assets not held in the
brokerage account, regardless of whether such information was provided by
Broker, customer or a third party.
17.2 DEFENSE OF THIRD PARTY CLAIMS. If, within 10 days after receiving written
notice of any claim, demand, suit, proceeding, or action with respect to which
Pershing may have any colorable claim to indemnification under this Agreement,
Broker shall fail to institute the defense of Pershing in connection with such
claim, demand, suit, proceeding, or action, or if thereafter Broker shall fail
diligently to pursue such defense, Pershing shall have the right to defend such
action or settle such action. The 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 Pershing's rights to indemnification
under this Paragraph.
18.0 FEES AND SETTLEMENTS FOR SECURITIES TRANSACTIONS
18.1 COMMISSIONS. Pershing shall charge each of Broker's customers the
commission, markup and any other charge or expense that Broker instructs it to
charge for each transaction. If instructions are not received with respect to a
transaction in the time period required by Pershing to implement those
instructions, Pershing shall charge the customer the commission, markup, or
other charge or expense prescribed in the basic commission schedule delivered to
Pershing by Broker. This basic schedule may be amended from time to time by
Broker by written instructions delivered to Pershing. Pershing shall only be
required to implement such amendments to the basic schedule to the extent such
amendments are within the usual capabilities of Pershing's data processing and
operations systems and only within such reasonable time limitations as Pershing
may deem necessary to avoid disruption of its normal operating capabilities.
18.2 RESPONSIBILITY FOR PRICING. Broker shall establish the commissions,
mark-ups and other charges or expenses to be charged to customers in accordance
with all applicable laws, rules, and regulations of the SEC, NASD, NYSE, and
other regulatory and self-regulatory agencies and organizations. Pershing shall
exercise no control or influence over the establishment of such commissions,
mark-ups or other charges or expenses. This provision shall not affect
Pershing's right to charge Broker or Broker's customers reasonable fees for the
services provided under this Agreement, including SEC
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transaction fees, fees for inactive accounts, and other appropriate fees. Broker
may instruct Pershing to charge such fees to its customers but remains liable
for the payment thereof. Broker shall notify its customers of fees charged to
them.
18.3 SETTLEMENT. Commissions charged Broker's customers shall be collected by
Pershing and credited to Broker, after deducting Pershing's compensation
referred to in Subparagraph 18.4 below and any other amount owed to Pershing
pursuant to this Agreement. Such commissions shall be remitted to Broker on a
monthly basis, approximately ten days after the final settlement date of each
month. More frequent remittances may be advanced to Broker if the parties so
agree and if the estimated current activity in the accounts and prior experience
justify such advances.
18.4 FEES FOR CLEARING SERVICES. As compensation for services provided pursuant
to this Agreement, Pershing shall deduct from the commissions, mark-up,
mark-down or fees charged Broker's customers the amounts set forth in the fully
disclosed pricing schedule attached hereto as Schedule A. The compensation
schedule may be changed by Pershing at any time on thirty days prior written
notice to Broker or from time to time as may be agreed by both parties. Broker
shall promptly notify Pershing of any change in the nature or mix of the
business engaged in by Broker.
19.0 DEPOSIT ACCOUNT
19.1 ESTABLISHMENT OF DEPOSIT ACCOUNT. To further assure Broker's performance of
its obligations under this Agreement, including but not limited to its
indemnification obligations under Paragraph 17, Broker shall, on or before the
execution of this Agreement, establish an account at Pershing to be designated
as the Broker's Deposit Account (the "Deposit Account"). The Deposit Account
shall at all times contain cash, securities, or a combination of both, having a
market value of at least the amount set forth in Schedule A. The securities
placed in the Deposit Account shall consist only of direct obligations issued by
or guaranteed as to principal and interest by the United States Government. In
the event of a substantial change in the nature and extent of Broker's business
operations, Pershing may require immediately that an additional amount be
deposited in the Deposit Account. If such a deposit is not made in the amount
specified whether or not Broker agrees that the amount is justified under this
subparagraph, Pershing shall have the right to terminate this Agreement
forthwith.
19.2 PERSHING RIGHT TO OFFSET COMMISSIONS AND DEPOSIT ACCOUNT. If (i) Pershing
shall have any claim against Broker or a customer of Broker which has not been
resolved within five business days after Pershing presents such claim to Broker,
or (ii) if Pershing 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 business days after being requested to do
so, Pershing may deduct the amount of such claim, loss, or expense from the
commissions to be credited to Broker on the next monthly or other periodic
settlement date pursuant to Paragraph 18.3. If the amount of these commissions
is less than the amount of such claim, loss, or expense, Pershing may
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withdraw from the Deposit Account cash or securities (or both) having a market
value equal to the amount of such deficiency. Broker shall be obligated to make
an immediate deposit in the Deposit Account of cash or securities sufficient to
bring the Account back to a value of at least the amount required by Schedule A.
19.3 TERMINATION OF DEPOSIT ACCOUNT. Upon the termination of this Agreement, or
as soon thereafter as practical, Pershing shall pay and deliver to Broker the
funds and securities in the Deposit Account, less any amounts which it is
entitled under the preceding paragraph; provided, however, that Pershing may
retain in the Deposit Account such amount for such period as it deems
appropriate for its protection from any claim or proceeding of any type, then
pending or threatened, until the final determination of such claim or proceeding
is made. If a threatened claim or proceeding is not resolved or if a legal
action or proceeding is not instituted within a reasonable time after the
termination of this Agreement, any amount retained with respect to such claim,
proceeding, or action shall be paid or delivered to Broker.
20.0 COMMUNICATION WITH CUSTOMERS
20.1 NOTICE TO CUSTOMERS. Pershing shall, upon the opening of an account
pursuant to paragraph 5 of this Agreement, mail to each customer a copy of the
Notice to Customers required by NYSE Rule 382(c).
20.2 CUSTOMER INQUIRIES AND COMPLAINTS. Broker and Pershing each agree to
forward to the other any written complaint received from a customer regarding a
function the other has agreed to perform pursuant to this Agreement.
20.3. RESTRICTION ON ADVERTISING. Neither Pershing nor Broker shall utilize the
name of the other in any way without the other's prior written consent nor shall
either party employ the other's name in such a manner as to create the
impression that the relationship between them is anything other than that of
clearing broker and introducing broker. Broker shall not hold itself out as an
agent of Pershing or as a subsidiary or company controlled directly or
indirectly by or affiliated with Pershing.
21.0 TERMINATION OF AGREEMENT
This Agreement shall continue until terminated as hereinafter provided:
21.1 TERMINATION UPON 90-DAY NOTICE. This Agreement may be terminated by either
party without cause upon ninety days prior written notice delivered in person or
by registered or certified mail. If either party terminates the Agreement
pursuant to this subparagraph, Pershing shall have the right to impose
reasonable limitations upon Broker's activities during the period between the
giving of notice and the transfer of Broker's accounts.
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21.2 CHANGE IN COMPENSATION SCHEDULE. If, pursuant to paragraph 18.4 of this
Agreement, Pershing shall make any unilateral change in the compensation
schedule described in that subparagraph, and that change causes the increase in
Pershing's compensation to exceed 10 percent during any calendar year, Broker
may, upon 15 days prior written notice to Pershing, terminate this Agreement on
the effective date of such unilateral change.
21.3 DEFAULT. If either party defaults in the performance of its obligations
under this Agreement, or otherwise violates the provisions of this Agreement,
the nondefaulting party may terminate this Agreement by delivering written
notice to the defaulting party (i) specifying the nature of the default and (ii)
notifying the defaulting party that unless the default is cured within a period
of ten days from receipt of the notice, this Agreement will be terminated
without further proceedings by the nondefaulting party.
21.4 DISABILITY. This Agreement may be terminated by Pershing or Broker
immediately in the event that the other party is enjoined, disabled, suspended,
prohibited, or otherwise becomes unable to engage in the securities business or
any part of it by operation of law or as a result of any administrative or
judicial proceeding or action by the SEC, any state securities law
administrator, or any regulatory or self-regulatory organization having
jurisdiction over such party.
21.5 CONVERSION OF ACCOUNTS. In the event that this Agreement is terminated for
any reason, Broker shall arrange for the conversion of Broker's and its customer
accounts to another clearing broker or to Broker if it becomes self-clearing.
Broker shall give Pershing notice (the "Conversion Notice") of (i) the name of
the broker that will assume responsibility for clearing services for Customers
and Broker, (ii) the date on which such broker will commence providing such
services, (iii) Broker's undertaking, in form and substance satisfactory to
Pershing, that Broker's agreement with such broker provides that such broker
will accept on conversion all Broker and customers accounts then maintained by
Pershing, and (iv) the name of an individual or individuals within new clearing
broker's organization whom Pershing may contact to coordinate the conversion.
The Conversion Notice shall accompany Broker's notice of termination given
pursuant to this paragraph. If Broker fails to give Conversion Notice to
Pershing, Pershing may give to Broker's customers such notice as Pershing deems
appropriate of the termination of this Agreement and may make such arrangements
as Pershing deems appropriate for transfer or delivery of customer and Broker
accounts. The expense of providing such notice and making such arrangements
shall be charged to Broker.
21.6 SURVIVAL. Termination of this Agreement in any manner shall not release
Broker or Pershing 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.
21.7 TERMINATION FEE. If Broker terminates this Agreement pursuant to
subparagraph 21.1 or 21.2 above, or Pershing terminates this Agreement pursuant
to subparagraph 21.3
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or 21.4 above within the period specified in Schedule A, Broker shall pay to
Pershing a termination fee as stated in Schedule A.
22.0 CONFIDENTIAL NATURE OF DOCUMENTS AND OTHER INFORMATION
Neither Pershing nor Broker shall disclose the terms of this Agreement
or information obtained as a result thereof to any outside party except to
regulatory or self-regulatory organizations with appropriate jurisdiction,
pursuant to judicial process or to authorized employees of the other on a
need-to-know basis. Any other publication or disclosure of the terms of this
Agreement may be made only with the prior written consent of the other party.
Broker and Pershing shall each maintain the confidentiality of documents and
information received from the other party pursuant to this Agreement. Pershing
and Broker each agree that any information regarding the identity of the other's
customers shall be kept confidential and not used by the other except as
required in connection with obligations under this agreement.
Broker acknowledges that the services Pershing provides hereunder
involve Broker access to proprietary technology, trading and other systems, and
that techniques, algorithms and processes contained in such systems constitute
trade secrets and shall be safeguarded by Broker, and the Broker shall exercise
reasonable care to protect Pershing's interest in such trade secrets. Broker
agrees to make the proprietary nature of such systems known to those of its
consultants, staff, agents or clients who may reasonably be expected to come
into contact with such systems. Broker agrees that any breach of this
confidentiality provision may result in its being liable for damages as provided
by law.
23.0 ACTION AGAINST CUSTOMERS BY PERSHING.
Pershing may, in its sole discretion and at its own expense, upon
written notice to Broker institute and prosecute in its name any action or
proceeding against any of Broker's customers in relation to any controversy or
claim arising out of Pershing's transactions with Broker or with Broker's
customers. Nothing contained in this Agreement shall be deemed either (a) to
require Pershing to institute or prosecute such an action or proceeding; or (b)
to impair or prejudice its right to do so, should it so elect, nor shall the
institution or prosecution of any such action or proceeding relieve Broker of
any liability or responsibility which Broker would otherwise have had under this
Agreement. Broker shall assign to Pershing its rights against its customers to
the extent requested by Pershing and necessary to effectuate the provisions of
this Paragraph.
24.0 NOTICES
Any notice or request required or permitted to be given under this
Agreement shall be sufficient if it is in writing and sent by hand or by
certified mail, return receipt requested, to the parties at the following
address:
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Broker:
The Chapman Company
401 East Pratt Street, 28h Floor
Baltimore, MD 21202
Attn: Nathan A. Chapman, President
Pershing:
Pershing Division
Donaldson, Lufkin & Jenrette Securities Corporation
One Pershing Plaza
Jersey City, N.J. 07399
Attn: Alton C. Jones, Managing Director
cc: Legal and Compliance Department
25.0 ARBITRATION
25.1 ARBITRATION REQUIREMENT. Any dispute between Broker and Pershing that
cannot be settled shall be taken to arbitration as set forth in paragraph 25.3
below.
25.2 ARBITRATION DISCLOSURE.
- 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 TO
SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY
LIMITED.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
25.3 ARBITRATION AGREEMENT.
ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS OR THIS
AGREEMENT SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE
NEW YORK STOCK
-20-
<PAGE>
EXCHANGE, INC., OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS,
INC., AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED
ORGANIZATION AND SHALL BE CONDUCTED AS A BROKER TO BROKER OR
MEMBER VS MEMBER DISPUTE. ARBITRATION MUST BE COMMENCED BY SERVICE
UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A
WRITTEN NOTICE OF INTENTION TO ARBITRATE, THEREIN ELECTING THE
ARBITRATION TRIBUNAL.
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 AND WHO IS A MEMBER OF A PUTATIVE CLASS AND 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.
26.0 GENERAL PROVISIONS
26.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the respective successors and assigns of Broker and
Pershing. No assignment of this Agreement by Broker shall be effective unless
Pershing's written consent shall be first obtained.
26.2 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.
26.3 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute a single agreement.
26.4 ENTIRE AGREEMENT/AMENDMENTS. This Agreement represents the entire agreement
between the parties with respect to the subject matter contained herein. This
Agreement may not be changed orally, but only by an agreement in writing signed
by the parties.
26.5 CAPTIONS. Captions herein are for convenience only and are not of
substantive effect.
-21-
<PAGE>
26.6 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to the conflicts of laws principles thereof.
26.7 CITATIONS. Any reference to the rules or regulations of the SEC, the NYSE
or any other regulatory or self-regulatory organization are current citations.
Any changes in the citations (whether or not there are any changes in the text
of such rules or regulations) shall be automatically incorporated herein.
26.8 CONSTRUCTION OF AGREEMENT. Neither this Agreement nor the performance of
the services hereunder shall be considered to create a joint venture or
partnership between Pershing and Broker or between Broker and other brokers for
whom Pershing may perform the same or similar service.
26.9 THIRD PARTIES. This Agreement is between the parties hereto and is not
intended to confer any benefits on third parties, including, but not limited to,
customers of Broker.
26.10 NON-EXCLUSIVITY OF REMEDIES. The enumeration herein of specific remedies
shall not be exclusive of any other remedies. Any delay or failure by a party to
this Agreement to exercise any right, power, remedy or privilege herein
contained, or now or hereafter existing under any applicable statute or law,
shall not be construed to be a waiver of such right, power, remedy, or
privilege. No single, partial, or other exercise of any such right, power,
remedy, or privilege shall preclude the further exercise thereof or the exercise
of any other right, power, remedy, or privilege.
26.11 SEC RELEASE 34-31511 PROVISION. Pursuant to the interpretation of
Introducing Accounts on a Fully Disclosed Basis contained in SEC Release
34-41511, it is hereby agreed between Broker and Pershing that, insofar as the
"financial responsibility rules" of the SEC and Securities Investor Protection
Act only are applicable, the accounts Broker introduces to Pershing on a fully
disclosed basis shall be considered to be accounts of Pershing and not Broker's
accounts. Nothing in this paragraph will otherwise change or affect the
provisions of this Agreement which provide that the customer account remains
Broker's customer account for all other purposes, including but not limited to,
supervision, suitability and indemnification.
-22-
<PAGE>
IN WITNESS WHEREOF the parties have hereto affixed their hands and
seals by their duly authorized officers on the day and date first above written.
This Agreement contains a pre-dispute arbitration clause in paragraph
25 on pages 19 and 20. Broker acknowledges receiving a copy of this Agreement.
BROKER:
THE CHAPMAN COMPANY
/s/ NATHAN A. CHAPMAN
By: Nathan A. Chapman
Title: President
PERSHING DIVISION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
/s/ ALTON C. JONES
By: Alton C. Jones
Title: Managing Director
-23-
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF THE COMPANY FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
AND FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999, AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FIANCIAL STATEMENTS.
</LEGEND>
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR 9-MOS 3-MOS
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1998 JAN-01-1999 JUL-01-1998
<PERIOD-END> DEC-31-1998 SEP-30-1999 SEP-30-1998
<CASH> 3,090,000 1,775,000 0
<SECURITIES> 2,284,000 2,052,000 0
<RECEIVABLES> 1,005,000 1,113,000 0
<ALLOWANCES> 0 0 0
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 10,008,000 8,805,000 0
<PP&E> 38,000 101,000 0
<DEPRECIATION> 0 (6,000) 0
<TOTAL-ASSETS> 10,205,000 9,263,000 0
<CURRENT-LIABILITIES> 3,063,000 2,964,000 0
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 3,000 3,000 0
<OTHER-SE> 7,061,000 6,251,000 0
<TOTAL-LIABILITY-AND-EQUITY> 10,205,000 9,263,000 0
<SALES> 0 0 1,063,000
<TOTAL-REVENUES> 0 0 889,000
<CGS> 0 0 0
<TOTAL-COSTS> 0 0 1,182,000
<OTHER-EXPENSES> 0 0 0
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 0 0 0
<INCOME-PRETAX> 0 0 (293,000)
<INCOME-TAX> 0 0 (62,000)
<INCOME-CONTINUING> 0 0 (231,000)
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> 0 0 (231,000)
<EPS-BASIC> 0 0 (0.08)
<EPS-DILUTED> 0 0 (0.08)
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FINANCIAL
STATEMENTS OF THE COMPANY FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998 AND FOR
THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1999, AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998 DEC-31-1999
<PERIOD-START> JUL-01-1999 JAN-01-1998 JAN-01-1999
<PERIOD-END> SEP-30-1999 SEP-30-1998 SEP-30-1999
<CASH> 0 0 0
<SECURITIES> 0 0 0
<RECEIVABLES> 0 0 0
<ALLOWANCES> 0 0 0
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 0 0 0
<PP&E> 0 0 0
<DEPRECIATION> 0 0 0
<TOTAL-ASSETS> 0 0 0
<CURRENT-LIABILITIES> 0 0 0
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 0 0 0
<OTHER-SE> 0 0 0
<TOTAL-LIABILITY-AND-EQUITY> 0 0 0
<SALES> 1,128,000 2,532,000 3,960,000
<TOTAL-REVENUES> 1,065,000 2,358,000 4,206,000
<CGS> 0 0 0
<TOTAL-COSTS> 1,765,000 2,765,000 5,347,000
<OTHER-EXPENSES> 0 0 0
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 26,000 3,000 38,000
<INCOME-PRETAX> (700,000) (407,000) (1,141,000)
<INCOME-TAX> (236,000) (102,000) (331,000)
<INCOME-CONTINUING> (464,000) (305,000) (810,000)
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> (464,000) (305,000) (810,000)
<EPS-BASIC> (0.16) (0.11) (0.27)
<EPS-DILUTED> (0.16) (0.11) (0.27)
</TABLE>
