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EXHIBIT 1.1
CASH ACCOUNT CLIENT AGREEMENT
Tucker Anthony
1 Beacon Street
Boston, Massachusetts 02108
One World Financial Center
New York, NY 10281
Genome Therapeutics Corp.
100 Beaver Street
Waltham, MA 02453
Dear Client:
This Agreement sets forth the terms and conditions under which we will
maintain your account for purchases and sales of securities and other property.
Please sign the reverse of the white copy of this Agreement where indicated and
return it in the enclosed envelope.
1. CLIENT REPRESENTATIONS.
(A) If you are an individual, you represent that you are of the age
of majority, that no one except you has an interest in your
account and you are not an employee of any exchange or of a
member firm of any exchange or the NASD, or of a bank, trust
company, or insurance company unless you have notified us to
that effect, and you will properly notify us if you become so
employed.
(B) If you are a corporation, trust, partnership or other entity,
you represent that:
(i) You are a duly formed and existing entity under the laws
of your state or jurisdiction of formation and are
qualified and (if you are a corporation) in good
standing in every jurisdiction in which you do business.
(ii) The person or persons designated to act for you have
been duly authorized by all necessary and appropriate
institution action; such person or persons have full
authority to execute this Agreement and all related
documents on your behalf and to act for you in all
matters regarding your account(s); we may at all times
rely on the fact of such authority without any duty to
investigate into either the authenticity or extent
thereof and the party or parties designated as
authorized signatories constitute(s) all of the proper
and necessary authorized persons.
2. FINALITY OF REPORTS. Reports of the execution of orders and statements
of your account shall be conclusive if not objected in forthwith in
writing after being forwarded by us to you.
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3. COMMUNICATIONS. Communications may be sent to you at your address given
above or at such other address as you may hereafter give us in writing,
and all communications so sent, whether by mail, telegraph, messenger or
otherwise, shall be deemed given to you personally, whether actually
received or not.
4. CREDIT INVESTIGAITON. As part of this agreement you understand an
investigation may be made pertaining to your credit standing and your
business conduct. If such investigation is conducted you understand you
have the right to make written request within a reasonable period of
time for a complete and accurate disclosure of the nature and scope of
such investigation.
5. SECURITY INTEREST AND LIEN. All monies, securities or other property
which we may at any time be carrying for you in any of your accounts
(either individually or jointly) or which may at any time be in our
possession for any purpose, including safekeeping, shall be subject to a
general lien for the discharge of all your obligations to us, whether or
however arising and irrespective of whether or not we have made advances
in connection with such securities or other property, and irrespective
of the number of accounts that you may have with us, and you hereby
authorize us to sell and/or purchase any and all securities or other
property in any of your accounts without notice to satisfy such general
lien.
6. IMPARTIAL LOTTERY ALLOCATION. You agree, that in the event we hold on
your behalf bonds or preferred stocks in street or bearer form which are
callable in part, you will participate in the impartial lottery
allocation system of the called securities in accordance with the rules
of the New York Stock Exchange. Further, you understand when the call is
favorable no allocation will be made to any account in which we, our
officers or employees have financial interest until all other Customers
are satisfied on an impartial lottery basis.
7. INTRODUCED ACCOUNTS. If we carry your account as clearing broker by
arrangement with another broker through whose courtesy your account has
been introduced, then unless we receive from you a written notice to the
contrary we shall accept from such other broker, without any inquiry or
investigation by it (i) orders for the purchase or sale in account of
securities and other property and (ii) any other instructions concerning
said account. You understand that we shall have no responsibility or
liability to you for any acts or omissions of such other broker, its
officers, employees or agents. Any such broker has authorized us to
enter into this Agreement with you on their behalf and the terms and
conditions hereof, including the arbitration provision contained in
paragraph 15 shall be applicable to all matters between such broker and
you. Each reference to "we" or "us" in paragraph 16 shall be understood
to include any such broker.
8. COSTS OF COLLECTION. In the event we have to employ counsel or a
collection agency to collect any debt balance which you owe, you hereby
authorize us to charge you for the reasonable costs of collection
including but not limited to attorneys' fees, court costs and expenses
whatsoever in nature incurred by us in effecting the collection.
9. MODIFICATION. Except as herein otherwise expressly provided, no
provision of this Agreement shall in any respect be waived, altered,
modified or amended unless in writing and signed by an Executive Vice
President of our organization. Our failure to insist at any time upon
strict compliance with this Agreement or with any of its terms, or any
course of
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conduct on its part, shall in no event constitute a waiver by us of any of our
rights or privileges.
10. BINDING UPON YOUR ESTATE. You hereby agree that this Agreement and all
the terms thereof shall be binding upon your heirs, executors,
administration, personal representatives and assigns.
11. PARTIAL UNENFORCEABILITY. If any provisions herein are or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or a regulatory body having jurisdiction over the
subject matter of this Agreement, such provision shall be deemed to be
rescinded or modified in accordance with any such law, rule or
regulation. In all other respects, this Agreement shall continue and
remain in full force and effect.
12. APPLICABLE LAW AND REGULATIONS. All transactions in your account shall
be subject to all applicable laws and the rules and regulations of all
federal, state and self regulatory agencies including but not limited
to the Board of Governors of the Federal Reserve System and the
constitution rules and customs of the exchange or marker (and its
clearing house) where executed.
13. NEW YORK LAW TO GOVERN. This Agreement shall be deemed to have been in
the State of New York and shall be construed, and the rights and
liabilities of the parties determined in accordance with the laws of
the State of New York.
14. PARAGRAPH 14 IS EFFECTIVE FOR JOINT ACCOUNTS.
(A) If this is a Joint Account, you agree that each of you shall
have authority on behalf of this account to buy, sell and
otherwise deal in, through or with us as broker or dealer,
securities or options to receive for the account,
confirmations, statements and communications of every kind, to
receive for the account money, securities and other property
and to dispose of same, to make for the account, agreements
relating to these matters and to termination or modify same or
waive any of the provisions thereof, and generally to deal
with us as if each of you along were the owner of the account,
all without notice to the other tenant. The liability of the
undersigned for the account shall be joint and several.
(B) We may follow the instructions of any one of you concerning
the account and make deliveries to any of you, of any or all
securities in this account, and make payments to any of you,
of any or all monies in this account as any of you may order
and direct, even if such delivers and/or payments shall be
made to one of you personally, and not for this account. We
shall be under no obligation to inquire into the purpose of
any such demand for delivery of securities or payment, and we
shall not be bound to see to the application of disposition of
the said securities and/or monies so delivered or paid to any
of you.
(C) In the event of the death of any of you, the survivor(s) shall
immediately give us written notice thereof, and we may before
or after receiving such notice, take such proceedings, require
such documents, retain such portion an/or restrict transaction
in
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the account as we may deem advisable to protect us against any
tax, liability, penalty, or loss under any present or future
laws or otherwise. The estate of any of you who shall have
died shall be liable and each survivor will be liable, jointly
and severally, to us for any debt or loss in this account
resulting from the completion of transaction initiated prior
to our receipt of written notice of such death or incurred in
the liquidation of the account or the adjustment of these
interests of the respective parties.
(D) Any taxes or other expenses becoming a lien against or being
payable out of the account as the result of the death of any
of you, or through the exercise by his or her estate or
representatives of any rights to the account shall be
chargeable against the interest of the survivor(s) as well as
against the interest of the state of the decedent. This
provision shall not release the decedent's estate from any
liability provided for in this Agreement.
(E) DESIGNATION OF TENANCY:
(i) Joint Tenants with Rights of Survivorship/when one
dies his or her interest passes to the survivor(s).
We will presume that it is your intention to create
an estate or account as joint tenants with rights of
survivorship and not, as tenants-in-common, unless
you otherwise provide by striking this paragraph
("i") hereafter. In the event of the death of either
or any of you, the entire interest in the joint
account shall be vested in the survivor on the same
terms and conditions as thereof or held, without in
any manner, releasing the decedent's estate from the
liability.
(ii) Tenants-In-Common without Rights of Survivorship/when
one dies, his or her interest passes to his or her
estate.
Having stricken paragraph ("i") above and filled in
the terms of this paragraph ("ii") below, it is your
intention to create an estate or account as
tenants-in-common without rights of survivorship and
not as joint tenants. Your interests in the account
shall be set forth below. In the event of the death
of either of any of you, the interests in the account
shall be determined as of the close of business on
the date of death of the descendent (or on the next
following business day) as follows:
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Name of Tenant or his or her estate %
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Name of Tenant or his or her estate %
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Note: Total percentage must equal 100%
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Indicate names and percentage amounts of the interest of each tenant. The only
names to be inserted are those of the present owners of the account; heirs or
beneficiaries CANNOT be designated on this form.
(F) COMMUNITY PROPERTY ACCOUNTS. If you desire to open a community
property account with us, in addition to signing and returning
to us this Client Agreement, you must sign and return a
separate Community Property Agreement.
15. ARBITRATION DISCLOSURES.
- ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
- THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
- PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
- THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL
FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO
SEEK MODIFICATION OF RULINGS BY THE ARTIBTRATORS IS STRICTLY
LIMITED.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
16. ARBITRATION. CLIENT AGREES THAT ALL CONTROVERSIES THAT MAY ARISE
BETWEEN CLIENT AND US, CONCERNING ANY TRANSACTIONS OF THE CONSTRUCTION,
PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN CLIENT
AND US PERTAINING TO SECURITIES AND OTHER PROPERTY, WHETHER ENTERED
INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED
PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE STATE
DESIGNATED IN PARAGRAPH 13. BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR
THE ARBITRATION FACILITY PROVIDED BY ANY OTHER EXCHANGE OF WHICH WE ARE
A MEMBER, OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR
THE MUNICIPAL SECURITIES RULEMAKING BOARD AND IN ACCORDANCE WITH THE
RULES OBTAINING OF THE SELECTED ORGANIZATION. THE CLIENT MAY ELECT IN
THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE AN EXCHANGE OR
SELF-REGULATORY ORGANIZATION OF WHICH WE ARE A MEMBER, BUT IF THE
CLIENT FAILS TO MAKE SUCH ELECTION BY REGISTERED LETTER OR TELEGRAM
ADDRESSED TO US AT OUR MAIN OFFICE BEFORE THE EXPIRATION OF TEN DAYS
AFTER RECEIPT OF A WRITTEN REQUEST FROM US TO MAKE SUCH ELECTION, THEN
WE MAY MAKE SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE
MAJORITY OFTHEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT, ST ATE OR FEDERAL, HAVING JURISDICTION.
NO PERSON SHALL BRING A PUNATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION
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AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUNATIVE
CLASS WHO HAS NOT OPTIONED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS
ENCOMPASSED BY THE PUNATIVE CLASS UNTIL (I) THE CLASS CERTIFICATION IS
DENIED; (II) THE CLIENT IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH
FORBEARANCE TO ENFORCE THE AGREEMENT TO ARBITRATE SHALL NOT CONSITUTE A
WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED
THEREIN.
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I. NOTE:
IF AN INDIVIDUAL ACCOUNT, this Agreement must be signed and dated in
the TWP PLACES marked "Client's Signature".
IF A JOINT ACCOUNT WITH RIGHTS OF SURVIVORSHIP, this Agreement must be
signed and dated in FOUR PLACES (the two places marked "Client
Signature" and the two places marked "Joint Party's Signature")
IF THIS ACCOUNT IS A TENANCY-IN-COMMON, this Agreement must be signed
and dated by all PARTIES to the tenancy-in-common, in both sections of
the signature area. Paragraph 14 must also be completed to establish a
tenancy-in-common.
IF AN INSTITUTIONAL ACCOUNT, this Agreement must be signed at the place
marked "Signature of Authorized Signatory".
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPHS 15 AND
16. BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED AND
RETAINED A COPY OF THIS AGREEMENT.
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Client's Signature Date Joint Party's Signature Date
/s/ Philip V. Holberton Chief Financial Offic 6/16/00
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Signature(s) of Authorized Signatory Title/Position Date
II. Substitute W-9 Payer's request for Taxpayer Identification Number (see
instruction on page 3)
Part 1 - Taxpayer Identification Number: Enter the taxpayer identification
number here. For most individual taxpayers, this is the Social Security Number.
Note: If the account is in more than one name, see the chart on the attached
instructions for guidelines on which number to give us.
The Taxpayer or Social Security Number is: __________________
Part 2 - Backup Withholding Number: Check the box if you are not subject to
backup withholding the provisions of Section 3406(a)(1)(c) of the Internal
Revenue Code (see instructions) [ ] Not subject to Backup Withholding
Certification under the penalties of perjury, I certify that the information
provided on this form is true, correct and complete
/s/ Philip V. Holberton 6/16/00
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Client's Signature Date Joint Party's Signature Date
III. Client Survey Re: SEC Rule 14b-1 (c)
No [ ] I do not want my name, address and security position released to
requesting companies in which I hold securities. Your brokerage firm is legally
obligated to disclose your identity to requesting companies unless you respond
with a "No" response to this survey. It is not necessary to respond to this
inquiry if you have no objection to release of this information.
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LACK OF RESPONSE TO THIS INQUIRY WILL LEGALLIY OBLIGATE US TO DISCLOSE YOUR
IDENTITY TO REQUESTING COMPANIES IN WHICH YOU HOLD SECURITIES.
/s/ Philip V. Holberton 6/16/00
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Client's Signature Date Joint Party's Signature Date
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