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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. Original )*
NATIONAL VISION ASSOCIATES, LTD.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
638459107
- --------------------------------------------------------------------------------
(CUSIP Number of Class of Securities)
Michael J. Kaplan, Esq.
WisdomTree Capital Management, Inc.
1633 Broadway, 38th Floor, New York, New York 10019 (212)843-2782
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 24, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Schedule)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b) (3) or (4), check the following: [ ]
Check the following box if a fee is being paid with this statement: [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 638459107
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WisdomTree Capital Management, Inc. I.D. #13-3729429
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ X ]
3 SEC USE ONLY
4 SOURCE OF FUNDS *
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0 shares of Common Stock
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 1,164,500 shares of Common Stock
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0 shares of Common Stock
PERSON WITH
10 SHARED DISPOSITIVE POWER
1,164,500 shares of Common Stock
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
1,164,500 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES * [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.6%
14 TYPE OF REPORTING PERSON *
CO
* SEE INSTRUCTIONS BEFORE FILING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Page 2 of 16 Pages
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SCHEDULE 13D
CUSIP No. 638459107
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WisdomTree Associates, L.P. I.D. #13-3729430
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ X ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0 shares of Common Stock
NUMBER OF
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 947,500 shares of Common Stock
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0 shares of Common Stock
10 SHARED DISPOSITIVE POWER
947,500 shares of Common Stock
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
947,500 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES * [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.6%
14 TYPE OF REPORTING PERSON *
PN
* SEE INSTRUCTIONS BEFORE FILING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Page 3 of 16 Pages
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SCHEDULE 13D
CUSIP No. 638459107
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WisdomTree Offshore LTD. I.D.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ X ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0 shares of Common Stock
NUMBER OF
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 217,000 shares of Common Stock
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0 shares of Common Stock
10 SHARED DISPOSITIVE POWER
217,000 shares of Common Stock
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
217,000 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES * [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.1%
14 TYPE OF REPORTING PERSON *
PN
* SEE INSTRUCTIONS BEFORE FILING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Page 4 of 16 Pages
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Item 1. Security and Issuer.
This Statement on Schedule 13D, dated January 2, 1997, relates
to the common stock, one cent ($.01) par value per share (the "Common Stock") of
National Vision Associates, Ltd., a corporation organized under the laws of the
State of Georgia (the "Company"), and is being filed pursuant to Rule 13d-1
under the Securities Exchange Act of 1934, as amended. This filing is the
original in this Statement, and this Statement is made by WisdomTree Associates,
L.P., WisdomTree Offshore, Ltd., and WisdomTree Capital Management, Inc. The
address of the principal executive office of the Company is 296 Graystone
Highway, Lawrenceville, Georgia 30245. As reported in its Form 10-Q for the
fiscal quarter ended September 28, 1996, as of September 28, 1996 the Company
had 20,627,599 shares of Common Stock outstanding.
Item 2. Identity and Background.
This Statement is being filed by WisdomTree Associates, L.P.
("WTAssociates"), WisdomTree Offshore, Ltd. ("WTOffshore") and WisdomTree
Capital Management, Inc. ("WTInc"), (which entities are hereinafter sometimes
collectively referred to as the "Reporting Entities") which entities may
together be deemed to be a "group", although such entities disclaim group
membership.
WTAssociates is a limited partnership organized under the laws
of the State of New York, with a business address at WisdomTree Associates,
L.P., 1633 Broadway, 38th Fl., New York, New York 10019. The principal business
of WTAssociates is as a private fund that invests in securities of companies
which generally have a market capitalization at the time the investment is
initiated of $250 million or less.
WTOffshore is a limited liability corporation organized under
the laws of the Cayman Islands, with a business address at WisdomTree Offshore,
Ltd., Zephyr House, 5th Fl., P.O. Box 1561, Mary Street, Grand Cayman, Cayman
Islands, British West Indies. The principal business of WTOffshore is as a
private offshore fund that invests in securities of companies which generally
have a market capitalization at the time the investment is initiated of $250
million or less. The officers and directors of WTOffshore, their respective
places of citizenship, and the principal occupation and business address of each
such person not principally employed by such entity, are as follows:
Name Citizenship Position; Other Occupation and Address
Jonathan L. Steinberg USA Vice President
Scot Rosenblum USA Chairman, Vice President and Director
Christopher Wetherhill Bermuda President and Director;
Executive Officer
The Hemisphere Group Limited
Hemisphere House
Page 5 of 16 pages
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9 Church Street
Hamilton, Bermuda
Charles Quinn Cayman Islands Director;
Partner
Quinn & Hampson
George Town,
Grand Cayman, Cayman Islands
WTInc is a corporation organized under the laws of the State
of New York, with a business address at WisdomTree Capital Management, Inc.,
1633 Broadway, 38th Fl., New York, New York 10019. WTInc is the General Partner
of WTAssociates and the Investment Manager of WTOffshore. The principal business
of WTInc is the management of WTAssociates. The officers and directors of WTInc,
their respective places of citizenship, and the principal occupation and
business address of each such person not principally employed by such entity,
are as follows:
Name Citizenship Position; Other Occupation and Address
Jonathan L. Steinberg USA Chairman, Chief Executive Officer,
Treasurer and Director
Robert Schmidt USA President and Director
Scot Rosenblum USA Vice President, Secretary and Director
Russell Anmuth USA Vice President
Messrs. Steinberg and Anmuth are the officers of WTInc principally involved in
investment decisions required of WTInc respecting funds managed by WTInc, which
investment discretion may include the power to vote and/or dispose of acquired
securities.
WTInc is a wholly-owned subsidiaries of Individual Investor
Group, Inc. ("IIG"), a corporation organized under the laws of the State of
Delaware, with a business address at Individual Investor Group, Inc., 1633
Broadway, 38th Fl., New York, New York 10019. The principal businesses of IIG
are as an investment manager and as a financial services company which publishes
and markets Individual Investor magazine, Ticker magazine, and Individual
Investor's Special Situations Report. The officers and directors of IIG, their
respective places of citizenship, and the principal occupation and business
address of each such person not principally employed by such entity, are as
follows:
Name Citizenship Position; Other Occupation and Address
Jonathan L. Steinberg USA Chairman, Director and
Chief Executive Officer
Robert Schmidt USA President, Chief Operating Officer
Director
Page 6 of 16 pages
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Scot Rosenblum USA Vice President, Secretary and
Director
Henry Clark USA Controller and Assistant Secretary
Peter M. Ziemba USA Director;
Attorney
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016
Bruce Sokoloff USA Director;
Executive Vice President
Reliance Group Holdings, Inc.
55 East 52nd Street
New York, New York 10055
WisdomTree Administration, Inc. ("WTAdmin") is a corporation
organized under the laws of the State of Delaware, with a business address at
WisdomTree Administration, Inc., 1633 Broadway, 38th Fl., New York, New York
10019. The principal business of WTAdmin is providing portfolio consulting
and/or administrative services to WTAssociates, WTOffshore, and/or WTInc.
WTAdmin is a wholly-owned subsidiary of IIG. WTAdmin has not been involved in
investment decisions respecting securities owned by WTAssociates and/or
WTOffshore.
Jonathan L. Steinberg is the Chairman and Chief Executive
Officer of IIG and may be deemed to be a controlling person of IIG and WTInc,
and thereby also deemed to be a controlling person of WTAssociates.
Messrs. Steinberg, Rosenblum, and Schmidt are also each
Limited Partners of WTAssociates.
During the last five years, neither the Reporting Entities
nor, to the best of the Reporting entities' knowledge, any of the other persons
identified in the foregoing Item 2 has been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors) or has been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which such person was or is subject to a judgement, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any violation
with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
As of the close of business on January 1, 1997, WTAssociates
owned 947,500 shares of Common Stock acquired in brokered transactions for an
aggregate purchase price, including commissions and net of sales to date, if
any, of shares of Common Stock, of $3,573,772. The source of funds for
acquisition of such Common Stock was available investment capital of
WTAssociates and, from time to time, borrowings in margin accounts regularly
Page 7 of 16 pages
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maintained at Paine Webber Incorporated.
As of the close of business on January 1, 1997, WTOffshore
owned 217,000 shares of Common Stock acquired in brokered transactions for an
aggregate purchase price, including commissions and net of sales to date, if
any, of shares of Common Stock, of $864,787. The source of funds for acquisition
of such Common Stock was available investment capital of WTOffshore and, from
time to time, borrowings in margin accounts regularly maintained at Paine Webber
Incorporated.
Item 4. Purpose of Transaction.
WTAssociates and WTOffshore have each acquired the Common
Stock for investment purposes. WTAssociates and WTOffshore will each
continuously evaluate its investment in the Common Stock based on factors
including, among others it may deem relevant, the Company's business, prospects
and financial condition, the market for the Common Stock, alternatively
available investment opportunities, general economic conditions, stock market
conditions, and availability of funds. WTAssociates and WTOffshore each
expressly reserves the right to increase or decrease its holdings of Common
Stock on such terms or at such times as it may determine. Any purchase or sale
of Common Stock may be executed in the open market or in one or more privately
negotiated transactions.
Except to the extent set forth above, or in any other Item
hereof, the Reporting Entities and, to the best of their knowledge, the persons
and entities listed in Item 2 hereof, do not have any present plans or proposals
that relate to or would result in any of the actions required to be described in
this Item 4 of Schedule 13D, but each of the Reporting Entities retains the
right to take all such actions as each may deem appropriate to maximize capital
appreciation in the Common Stock owned by WTAssociates.
Item 5. Interest in Securities of the Issuer.
(a) As of the close of business on January 1, 1997, WTAssociates was the record
owner and had direct beneficial ownership of 947,500 shares, or approximately
4.6% of the outstanding Common Stock.
As of the close of business on January 1, 1997, WTOffshore was
the record owner and had direct beneficial ownership of 217,000 shares, or
approximately 1.1% of the outstanding Common Stock.
As the General Partner of WTAssociates and the Investment
Manager of WTOffshore, WTInc may be deemed to have direct beneficial ownership
of the 1,164,500 shares of Common Stock, or approximately 5.6% of the
outstanding Common Stock, owned of record as of the close of business on January
1, 1997 by WTAssociates and WTOffshore in the aggregate.
Page 8 of 16 pages
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Each of the other persons and entities named in Item 2 may, by
virtue of their relationship to WTAssociates and/or WTOffshore as is described
therein, be deemed to have indirect beneficial ownership of the Common Stock
owned of record by WTAssociates and/or WTOffshore, respectively; however, each
of such persons and entities disclaims such beneficial ownership and, to the
best knowledge of the Reporting Entities and except as may be specifically
otherwise set forth herein, no such persons and/or entities has any other
beneficial ownership of Common Stock.
Messrs. Steinberg, Schmidt, Rosenblum and Anmuth may, by
virtue of their status as Limited Partners of WTAssociates, and WTInc may, by
virtue of its economic interest as General Partner of WTAssociates, be deemed to
have beneficial ownership of that portion of the securities owned by
WTAssociates corresponding to their respective equity interests therein.
(b) The power to vote or direct the vote and the power to dispose or direct the
disposition of the Common Stock as to which WTAssociates is the record owner may
be deemed to be shared between WTInc and WTAssociates, although WTInc, as
General Partner of WTAssociates, is generally vested with sole control of such
matters.
The power to vote or direct the vote and the power to dispose
or direct the disposition of the Common Stock as to which WTOffshore is the
record owner may be deemed to be shared between WTInc and WTOffshore, although
WTInc, as Investment Manger of WTOffshore, is generally vested with sole control
of such matters.
To the best knowledge of the Reporting Entities, no other
person or entity included in Item 2, by virtue of the capacity indicated therein
and separate from their direct involvement with the Reporting Entities, shares
in the power to vote or direct the vote or the power to dispose or direct the
disposition of the Common stock as to which WTAssociates and/or WTOffshore are
the record owners.
(c) Information concerning transactions in Common Stock effected by the
Reporting Entities during the last Sixty (60) days is set forth in Exhibit A
hereto and is incorporated by reference; all of such transactions were effected
in open market transactions. Except as set forth in Exhibit A, no transactions
in Common Stock have been effected by any of the Reporting Entities or, to the
best knowledge of the Reporting Entities, by any of the persons or entities
included in Item 2 during the last Sixty (60) days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Page 9 of 16 pages
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Pursuant to the agreement of limited partnership of
WTAssociates, WTInc, as general partner, (i) is generally vested with all
investment discretion respecting securities owned by WTAssociates, including the
power to vote or direct the vote and the power to dispose or direct the
disposition of such securities, and (ii) has the right to receive (a) a
quarterly fee calculated at the per annum rate of 1% of net assets, plus (b) an
incentive allocation equal to 20% of annual net profit, calculated after
allocation of net profit equal to the excess of net loss over net profit, if
any, allocated to the limited partners in previous fiscal years. WTAdmin may
receive all or a portion of the fees described in (a) above as otherwise due to
WTInc.
Pursuant to an investment management agreement between
WTOffshore and WTInc, as investment manager WTInc. (i) is generally vested,
subject to the control of WTOffshore's Board of Directors, with all investment
discretion regarding securities owned by WTOffshore, including the power to vote
or direct the vote and the power to dispose or direct the disposition of such
securities, and (ii) has the right to receive (a) a quarterly fee calculated at
the per annum rate of 1.5% of net assets, plus (b) an incentive allocation equal
to 20% of annual net profit, calculated after allocation of net profit equal to
the excess of net loss over net profit, if any, allocated to the limited
partners in previous fiscal years. WTAdmin may receive all or a portion of the
fees described in (a) above as otherwise due to WTInc.
WTAssociates and WTOffshore have no agreement, arrangement or
understanding to act in concert with respect to the Common Stock, nor is WTInc
and/or WTAdmin under any obligation to exercise investment discretion on behalf
of WTAssociates and/or WTOffshore in any concerted fashion.
Except as set forth in this Statement, there are no contracts,
arrangements, understandings or relationships between the Reporting Entities,
nor are there any contracts, arrangements, understanding or relationships
between the Reporting Entities and the other persons and entities included in
Item 2, or, to the best knowledge of the Reporting Entities, between the persons
and entities included in Item 2, with respect to the Common Stock.
Item 7. Material to be Filed as Exhibits.
Exhibit A - Transactions in Common Stock
Exhibit B - Form of Margin Agreement
Page 10 of 16 pages
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SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certify that the information set forth in this statement
is true, complete and correct.
Dated: January 2, 1997 WISDOMTREE ASSOCIATES, L.P.
By: WisdomTree Capital Management, Inc.
General Partner
By: /S/: SCOT ROSENBLUM
-------------------------
Name: Scot Rosenblum
Title: Vice President
Dated: January 2, 1997 WISDOMTREE OFFSHORE, LTD.
By: /S/: SCOT ROSENBLUM
-------------------------
Name: Scot Rosenblum
Title: Director
Dated: January 2, 1997 WISDOMTREE CAPITAL MANAGEMENT, INC.
By: /S/: SOCT ROSENBLUM
-------------------------
Name: Scot Rosenblum
Title: Vice President
Page 11 of 16 Pages
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EXHIBIT A
WisdomTree Associates, L.P.
Date Per Share $ Price # Shares Acquired (Disposed)
11/27/96 3.45 2,500
11/27/96 3.40 5,000
11/27/96 3.71 50,000
11/29/96 4.31 75,000
12/06/96 3.92 2,000
12/06/96 4.12 10,000
12/10/96 3.97 4,000
12/30/96 3.99 35,500
12/31/96 4.39 35,000
WisdomTree Offshore, Ltd.
Date Per Share $ Price # Shares Acquired (Disposed)
12/13/96 3.98 2,600
12/13/96 4.13 7,500
12/16/96 4.09 7,500
12/17/96 4,00 7,500
12/18/96 4.07 3,500
12/19/96 4.01 500
12/19/96 4.05 10,000
12/20/96 3.93 5,000
12/23/96 3.93 7,500
12/23/96 3.87 3,200
12/24/96 4.18 25,000
12/26/96 4.05 14,000
12/27/96 4.11 1,700
12/31/96 4.51 31,500
Page 12 of 16 Pages
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EXHIBIT B
INSTITUTIONAL CLIENT'S AGREEMENT
FULL ACCOUNT TITLE BRANCH ACCOUNT NUMBER BROKER
Gentlemen:
In consideration of your opening and carrying one or more accounts of
the undersigned for the purchase and sale of property, the undersigned agrees as
follows:
1. The word "property" as used herein shall mean all securities, including
but not limited to monies, stocks, options, bonds, notes, futures
contracts, commodities, certificates of deposit and other obligations,
contracts or securities. "You" or "your" means PaineWebber
Incorporated, its successor firms, subsidiaries, correspondents or
affiliates and employees.
2. All transactions for the undersigned shall be subject to the
constitution, rules, regulations, interpretations, by laws, customs and
usages of the exchange or market and its clearing house, if any, where
the transactions are executed. Such transactions are also subject,
where applicable, to the provisions, rules and regulations of the
Securities and Exchange Commission, the Commodity Futures Trading
Commission and the Board of Governors of the Federal Reserve System in
existence at this time and as later amended and supplemented.
3. You may change the terms of this Agreement at any time upon prior
written notice to the undersigned. If such changes are not acceptable,
the undersigned will notify you in writing of such non-acceptance and
the undersigned's account(s) will be cancelled. The undersigned will
remain liable for any outstanding debits and/or charges on the
account(s). By continuing to accept the services offered by you, the
undersigned indicates the acceptance of these changes.
4. All orders for the purchase and sale of any property will be given by
the undersigned and executed with the distinct understanding that an
actual purchase or sale is intended and that it is the intention and
obligation of the undersigned in every case to deliver property to
cover any and all sales and in the case of purchases to receive and pay
for property and that the undersigned will do so upon your demand. In
case you make a short sale of any property at the direction of the
undersigned or in case the undersigned fails to deliver to you any
property which you have sold at the direction of the undersigned, you
are authorized to borrow the property necessary to enable you to make
delivery to the purchaser and the undersigned agrees to be responsible
for the cost or loss you may incur, or the cost of obtaining the
property if you are unable to borrow it. No settlement of the
undersigned's account(s) may occur without your first receiving all
property for which the account is short and all property in which the
account(s) are long being paid for in full and the property then
delivered. You and your correspondents are constituted agents of the
undersigned to complete all such transactions and are authorized to
make advances and expend monies as are required.
5. The undersigned, when placing with you any sell order for a short
account, will designate it as such and hereby authorizes you to mark
the order as being "short". When placing with you any order for a
long account, the undersigned will designate it as such and hereby
authorizes you to mark the order as being "long". Any sell order
which the undersigned shall designate as being for a long account is
for property which is owned by the undersigned and, if you are unable
to deliver this property from any account(s) of the undersigned, the
placing of the order will constitute a representation by the
undersigned that the securities will be delivered as required and
that the undersigned will reimburse you for any expense incurred.
Page 13 of 16 Pages
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6. All property held or purchased shall be subject to a lien in your
favor for the discharge of all indebtedness and other obligations of
the undersigned, however and whenever arising, and may be held by you
as security for the payment of any such obligations or indebtedness
to you in any account you maintain for the undersigned. You are
authorized without notice to the undersigned whenever you deem it
advisable from time to time (a) to transfer interchangeably between
accounts of the undersigned any or all property so held, without
regard to whether you have in your possession or subject to your
control other property of the same kind and amount and (b) in the
usual course business to pledge, repledge, hypothecate (either for
the amount owed you or for a greater or lesser sum) and lend the same
to you as broker or to others from time to time, separately or
commingled with property carried for other clients, and you shall not
be required to deliver to the undersigned the same property but only
property of the same kind and amount.
7. The undersigned shall at all times be liable for the payment of any
amounts advanced, any debit balance or other obligations owing in any
account(s) of the undersigned with you and the undersigned shall be
liable to you for any deficiency remaining in any such account(s) in
the event of the liquidation thereof, in whole or in part, by you or
the undersigned. The undersigned shall make payment of any such
balance, obligation, deficiency, indebtedness, including interest and
commissions, upon demand, and any costs of collection, including
attorney's fees, if incurred by you.
8. All amounts advanced and other balances due shall be charged interest
in accordance with your usual custom which may include the
compounding of interest, including any increases in rates which
reflect adjustments in the call money rate, and such other charges as
you may make to cover your facilities and extra services. Payment of
all amounts advanced and other balances due, together with the
interest thereon, shall be made by the undersigned to you at any of
your offices which will act as the undersigned's agent for the
transmittal of such amounts and other balances due to you at New
York, New York.
THE UNDERSIGNED HAS READ AND UNDERSTANDS THE STATEMENT OF CREDIT
PRACTICES DESCRIBING INTEREST CHARGES PRINTED ON THE REVERSE SIDE
9. You may employ sub brokers and shall be responsible only for reasonable
care in their selection. You may deal with market makers or members of
any exchange known as specialists or known as odd lot dealers and in
the execution of orders they may act as sub brokers for the undersigned
and may also buy or sell the property for themselves as dealers for
their own account.
10. The undersigned agrees to maintain in account(s) with you such
positions and margin as required by all applicable statutes, rules,
regulations, procedures, and customs, or as you deem necessary or
advisable and, where applicable, to satisfy any and all margin calls
issued in connection with such business.
11. You shall have the right in accordance with your general policies
regarding your margin maintenance requirements in existence at the
time, or, if in your discretion you consider it necessary for your
protection to require additional collateral or the liquidation of any
account of the undersigned, or in the event a petition in bankruptcy
or for appointment of a receiver is filed by or against the
undersigned, or an attachment is levied against the account(s) of the
undersigned to sell any or all property in the account(s) of the
undersigned with you, whether carried individually or jointly with
others, to buy any or all property which may be short in such
account(s), to cancel any open orders and to close any or all
outstanding contracts, all without demand for margin or additional
margin, other notice of sale or purchase, or other notice or
advertisement. Any such sales or purchases may be made at
your discretion on any exchange or other market where such business
is usually transacted, or at public auction or private sale, and you
may be the purchasers for your own account. It is understood a prior
demand, or call, or prior notice of the time and place of such sale
or purchase shall not be considered a waiver of your right to sell or
buy without demand or notice as herein provided.
Page 14 of 16 Pages
<PAGE>
12. The undersigned expressly agrees you will not be bound by any
representation or agreement made by any of your employees or agents
which purports to affect or diminish your rights under this agreement.
13. In the event any one or more of the provisions contained in this
agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such finding or holding shall only affect
the provision(s) involved and the remainder of this agreement and the
application of all provisions shall not be affected.
14. The undersigned's address below is and will continue to be a correct
address until your Lincoln Harbor Office receives written notice of
any change. Notices and communications sent to the undersigned at
such address will constitute personal delivery to the undersigned,
whether actually received or not. All reports of execution of orders
and account statements shall be conclusive if not objected to by the
undersigned in writing immediately by notice sent to you by
registered mail.
15. All transactions made for the account(s) of the undersigned shall be
governed by the terms of this agreement. This agreement and its
enforcement shall be construed and governed by the laws of the State of
New York, and shall be binding upon the undersigned, its successors and
assigns.
16. - 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 ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
- THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
Page 15 of 16 Pages
<PAGE>
I AGREE, AND BY CARRYING AN ACCOUNT FOR ME PAINEWEBBER AGREE(S), THAT
ANY AND ALL CONTROVERSIES WHICH MAY ARISE BETWEEN ME AND PAINEWEBBER
CONCERNING ANY ACCOUNT, TRANSACTION, DISPUTE OR THE CONSTRUCTION,
PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT, WHETHER ENTERED
INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD UNDER
AND PURSUANT TO AND BE GOVERNED BY THE FEDERAL ARBITRATION ACT, AND
SHALL BE CONDUCTED BEFORE AN ARBITRATION PANEL COVENED BY THE NEW YORK
STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS,
INC. I MAY ALSO SELECT ANY OTHER NATIONAL SECURITY EXCHANGE'S
ARBITRATION FORUM UPON WHICH PAINEWEBBER IS LEGALLY REQUIRED TO
ARBITRATE THE CONTROVERSY WITH ME, INCLUDING, WHERE APPLICABLE, THE
MUNICIPAL SECURITIES RULE-MAKING BOARD. SUCH ARBITRATION SHALL BE
GOVERNED BY THE RULES OF THE ORGANIZATION CONVENING THE PANEL. I MAY
ELECT IN THE FIRST INSTANCE THE ARBITRATION FORUM, BUT IF I FAIL TO
MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO YOU
AT YOUR MAIN OFFICE, BEFORE THE EXPIRATION OF FIVE DAYS (5) AFTER
RECEIPT OF A WRITTEN REQUEST FROM YOU TO MAKE SUCH ELECTION, THEN YOU
MAY MAKE SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE
MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT
AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION;
WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS
WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION
UNTIL: (I) THE CLASS CERTIFICATION IS DENIED; (II) THE CLASS IS
DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE
COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT
CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE
EXTENT STATED HEREIN.
I EXPRESSLY AGREE THAT SERVICE OF PROCESS IN ANY ACTION SHALL BE
SUFFICIENT IF SERVED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT
MY LAST ADDRESS KNOWN TO YOU. I EXPRESSLY WAIVE ANY DEFENSE TO
SERVICE OF PROCESS AS SET FORTH ABOVE.
17. This agreement may be assigned by you and will inure to the benefit of
your successors and assigns and you may transfer or assign the
account(s) of the undersigned to them, which shall be binding on the
undersigned, its successors and assigns.
18. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT YOU AND
YOUR SUCCESSORS AND ASSIGNS ARE AUTHORIZED IN THE USUAL COURSE OF
BUSINESS TO LEND, RELEND, HYPOTHECATE, REHYPOTHECATE, PLEDGE OR
REPLEDGE SEPARATELY OR TOGETHER WITH THE PROPERTY OF OTHERS EITHER TO
YOURSELVES OR TO OTHERS ANY PROPERTY WHICH YOU MAY BE CARRYING FOR
THE UNDERSIGNED ON MARGIN. THIS AUTHORIZATION SHALL APPLY TO
ALL ACCOUNTS CARRIED BY YOU FOR THE UNDERSIGNED AND SHALL REMAIN IN
FULL FORCE UNTIL WRITTEN NOTICE OF REVOCATION IS RECEIVED BY YOU. BY
SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT:
1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE
LOANED TO THE BROKER OR LOANED OUT TO OTHERS;
2. THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGE 1 AT
PARAGRAPH 16.
- -------------------- ------------------------------ ------------
SIGNATURE PLEASE PRINT NAME AND TITLE DATE
- --------------------------------------------------------------------------------
NO. OR STREET ADDRESS CITY OR TOWN STATE POSTAL CODE
Page 16 of 16 Pages
