<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Curative Health Services, Inc.
- ------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- ------------------------------------------------------------------------------
(Title of Class of Securities)
231264102
- ------------------------------------------------------------------------------
(CUSIP Number)
Mark R. Levy, Holland & Hart LLP, 555 l7th Street, Denver, CO 80202 -
(303) 295-8073
- ------------------------------------------------------------------------------
(Name/Address/Telephone Number of Person Authorized
to Receive Notices and Communications)
November 11, 1999
- ------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of SECTIONS 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. / /
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See
SECTION 240.13d-7(b) 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).
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 1 of 7 Pages
- -------------------------- -------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Joseph Feshbach
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (Entities Only)
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF, OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / /
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
Number of 15,500
---------------------------------------------------
8 SHARED VOTING POWER
Shares 313,000
---------------------------------------------------
9 SOLE DISPOSITIVE POWER
Beneficially Owned by Each 15,500
Reporting
---------------------------------------------------
10 SHARED DISPOSITIVE POWER
Person With 313,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
328,500
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.3%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 2 of 7 Pages
- -------------------------- -------------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Matthew Feshbach
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (Entities Only)
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF, OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
Number of 206,600
---------------------------------------------------
8 SHARED VOTING POWER
Shares 116,100
---------------------------------------------------
9 SOLE DISPOSITIVE POWER
Beneficially Owned by Each 206,600
Reporting
---------------------------------------------------
10 SHARED DISPOSITIVE POWER
Person With 116,100
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
322,700
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.2%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 3 of 7 Pages
- -------------------------- -------------------------
ITEM 1. SECURITY AND ISSUER
This Schedule 13D relates to common stock, $.01 par value (the
"common stock"), of Curative Health Services, Inc. (the "Company"). The
address of the principal executive office of the Company is 150 Motor
Parkway, Hauppauge, NY 11788.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is filed by Joseph Feshbach and Matthew Feshbach,
who are acting together as a group (together, the "Feshbachs") in regard to
certain aspects of common stock of the Company.
Joseph Feshbach is an individual, whose business address is 27600
Edgerton Road, Los Altos Hills, CA 94022. His present principal occupation is
private investor.
Matthew Feshbach is an individual, whose business address is 8
Stonegate, Bellaire, FL 33756. His present principal occupation is private
investor.
The Feshbachs are United States citizens.
During the last five years, neither Joseph Feshbach nor Matthew
Feshbach has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). In addition, during the last five years,
neither Joseph Feshbach nor Matthew Feshbach has been a party to a civil
proceeding of any judicial or administrative body of competent jurisdiction
as a result of which he was or is subject to a judgment, 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
On November 11, 1999, the Feshbachs made a determination, without
any written agreement, that they would act together for the purposes of
voting shares of the common stock and for considering and possibly
implementing strategies to enhance the value of the common stock. Together,
the Feshbachs may be considered as owning beneficially more than 5% of the
outstanding common stock. The Feshbachs provided no monetary consideration to
each other for acting together on these matters.
The funds used to purchase the shares of the Company common stock
owned beneficially by the Feshbachs were cash on hand and margin borrowings
through Bear Stearns Securities Corp. The amount of the margin borrowing
varies depending on the market price of the Company common stock and other
securities. These purchases occurred in 1999. The total funds used by the
Feshbachs and parties related to them to make these purchases through the
date of this Schedule 13D were $3,508,899. In addition, Joseph Feshbach used
funds in the amount of $68,075 to purchase the options described in Item 5 of
this Schedule 13D.
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 4 of 7 Pages
- -------------------------- -------------------------
ITEM 4. PURPOSE OF TRANSACTION
The Feshbachs initially acquired shares of the Company's common
stock for investment purposes. Based on developments at the Company, the
Feshbachs intend to open discussions with the management of the Company, and
possibly with the Board of Directors of the Company, in regard to actions
that may be taken to enhance shareholder value. Depending upon the results of
these discussions, the Feshbachs may seek to nominate and elect one or more
directors of the Company, including possibly a majority or all of the
directors of the Company. The Feshbachs may also discuss strategies to
enhance shareholder value with other shareholders of the Company. The
Feshbachs intend to acquire on the open market from time to time additional
shares of the common stock of the Company. The Feshbachs may also sell shares
of the common stock from time to time.
The Feshbachs intend to discuss with the Company and may in the
future seek to implement one or more of the following: (1) Reconstituting all
or part of the Board of Directors of the Company to include one or more
directors nominated by the Feshbachs; (2) re-activation of the Company's plan
to purchase up to approximately 800,000 shares of the Company common stock,
and possibly an expansion of that plan to include additional shares; (3) a
merger of the Company with a third party, a sale of stock by the Company or
Feshbachs to third parties, or a sale or transfer of substantially all or a
material amount of assets of the Company to a third party; (4) changes in the
Articles of Incorporation, Bylaws and the 1995 Rights Agreement of the
Company which may affect the acquisition of control of the Company by any
person; (5) additional incentives to the management of the Company; and (6) a
change in the officers of the Company.
There can be no assurance that the Feshbachs will take any of the
actions listed above. The taking of any actions depends upon future
developments and evaluations by the Feshbachs.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Company's quarterly report on Form 10-Q for the quarter
ended June 30, 1999, filed with the Securities and Exchange Commission
("SEC"), states that as of August 1, 1999, the Company had issued and
outstanding 10,090,110 shares of common stock. This number of outstanding
shares is used for purposes of the determining the percentage of shares of
the Company common stock owned by the Feshbachs.
Joseph Feshbach owns beneficially 328,500 shares of the common
stock, which represents approximately 3.3% of the outstanding common stock.
The shares owned beneficially by Joseph Feshbach includes 90,000 shares
subject to presently exercisable options. Matthew Feshbach owns beneficially
322,700 shares of the common stock, which represents approximately 3.2% of
the outstanding common stock. As a group, the Feshbachs own beneficially
651,200 shares of the common stock, which represents approximately 6.5% of
the outstanding common stock.
(b) Joseph Feshbach has the sole power to direct the vote of and to
dispose of 15,500 shares of the Company common stock, and Joseph Feshbach
shares the power to vote and to dispose of 313,000 shares of common stock.
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 5 of 7 Pages
- -------------------------- -------------------------
The shares as to which Joseph Feshbach shares these powers are owned
by the Lucinda H. Feshbach Trust, of which his wife (Lucinda H. Feshbach) is
the trustee, his three adult children (Sarah Feshbach, Melissa Feshbach
Epstein and Jessica Feshbach Paolo), his father-in-law (A.J. Horn) and an
individual retirement account of his wife. A business address for each of
these persons is the same as stated for Joseph Feshbach in Item 2 above in
this Schedule 13D. The principal occupations of these persons are: Lucinda H.
Feshbach, minister; Sarah Feshbach, church administrator; Melissa Feshbach
Epstein, minister; Jessica Feshbach Paolo, minister; and A.J. Horn, retired.
During the last five years, none of these persons has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
Further, during the last five years, none of these persons was a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws on finding any violation with respect to such laws. Each of these
persons is a United States citizen.
Matthew Feshbach has the sole power to direct the vote of and to
dispose of 206,600 shares of the Company common stock, and Matthew Feshbach
shares the power to vote and to dispose of 116,100 shares of common stock.
The shares as to which Matthew Feshbach shares these powers are
owned by the individual retirement account of his wife (Kathleen M. Feshbach)
and by the Kathleen M. Feshbach Trust, of which Kathleen Feshbach is the
trustee. A business address for Kathleen Feshbach is the same as stated for
Matthew Feshbach in Item 2 above in this Schedule 13D. The principal
occupation of Kathleen Feshbach is student. During the last five years,
Kathleen Feshbach has not been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors). Further, during the last five
years, Kathleen Feshbach was not a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws on finding any violation with respect to
such laws. Kathleen Feshbach is a United States citizen.
(c) During the 60 days prior to the date of this filing, the
Feshbachs effected the following transactions in common stock of the Company:
The Lucinda H. Feshbach Trust purchased an option to purchase 65,000
shares of common stock at a price of $4.46 per share. The Trust purchased the
option on September 29, 1999 at a cost of $1.02 per share, or an aggregate
price of $66,300. This option has not been exercised, and expires on
September 29, 2000.
On November 12, 1999, the Lucinda H. Feshbach Trust purchased 2,500
shares, with margin borrowings, at a price of $5.685 per share. On November
12, 1999, the Joseph L. Feshbach IRA purchased 1,000 shares with cash on hand
at $5.4375 per share. On November 11, 1999, the Kathleen M. Feshbach IRA
purchased 15,000 shares with cash on hand at a price of $5.039 per share. On
November 12, 1999, the Kathleen M. Feshbach Trust purchased 15,000 shares
with cash on hand at a price of $5.0227 per share. All these purchases were
made on the open market.
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 6 of 7 Pages
- -------------------------- -------------------------
(d) No person other than those listed above has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from
the sale of, the shares of common stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
See the information disclosed in Item 3 of this Schedule 13D.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
99.1 Agreement to File Joint Schedule 13D
99.2 Form of Customer Agreement with Bear
Stearns Securities Corp.
</TABLE>
<PAGE>
SCHEDULE 13D
- -------------------------- -------------------------
CUSIP No. 231264102 Page 7 of 7 Pages
- -------------------------- -------------------------
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
November 19, 1999 /s/ Joseph Feshbach
- -------------------------------- ----------------------------------
Date Signature
----------------------------------
Name: Joseph Feshbach
November 19, 1999 /s/ Matthew Feshbach
- -------------------------------- ----------------------------------
Date Signature
----------------------------------
Name: Matthew Feshbach
<PAGE>
EXHIBIT 99.1
AGREEMENT TO FILE JOINT SCHEDULE 13D
Pursuant to Regulation SECTION 240.13d-1(k)(1) promulgated under
the Securities Exchange Act of 1934, thE undersigned hereby agree that only
one statement containing the information required on Schedule 13D, need be
filed with respect to ownership by each of the undersigned of capital stock
of Curative Health Services, Inc. and that such statement shall be filed on
behalf of each of them.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original.
Dated: November 19, 1999.
/s/ Joseph Feshbach
-----------------------------------
Joseph Feshbach
/s/ Matthew Feshbach
-----------------------------------
Matthew Feshbach
<PAGE>
EXHIBIT 99.2
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms and conditions
under which Bear, Stearns Securities Corp., Bear, Stearns & Co., Inc., and
the successors and assigns (collectively "Bear Stearns") will transact
business with you including but not limited to the maintenance of your
account(s). If the accounts are cash accounts and you have fully paid for all
securities therein, the provisions of paragraphs 16 and 17 shall not bind you
unless you enter into a margin transaction.
1. APPLICABLE LAW AND REGULATIONS. All transactions shall be subject
to all applicable law 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 market (and clearing house) where executed.
2. SECURITY INTEREST AND LIEN. As security for the payment of all of
your obligations and liabilities to Bear Stearns, Bear Stearns shall have a
continuing security interest in all property in which you have an interest
held by or through Bear Stearns or its affiliates, including, but not limited
to, securities, commodity futures contracts, commercial paper, monies and any
after-acquired property. In addition, in order to satisfy any such
outstanding liabilities or obligations, Bear Stearns may, at any time and
without prior notice to you, use, apply or transfer any such securities or
property interchangeably. In the event of a breach or default under this
Agreement, Bear Stearns shall have all rights and remedies available to a
secured creditor under any applicable law in addition to the rights and
remedies provided herein.
3. DEPOSITS ON TRANSACTIONS. Whenever Bear Stearns, in its sole
discretion, considers it necessary for its protection, it may require you to
deposit cash or collateral immediately in your account(s) prior to any
applicable settlement date in order to assure due performance of your open
contractual commitments.
4. BREACH, BANKRUPTCY OR DEFAULT. Any breach of this Agreement or
the filing of a petition or other proceeding in bankruptcy, insolvency, or
for the appointment of a receiver by or against you, the levy of an
attachment against your account(s) with Bear Stearns, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as
determined by Bear Stearns in its sole discretion, shall constitute, at Bear
Stearns' election, a default by you under all agreements Bear Stearns may
then have with you, whether heretofore or hereafter entered into. In the
event of default, Bear Stearns reserves the right to sell, without prior
notice to you, any and all property in which you have an interest, held by or
through Bear Stearns or any of its affiliates, to buy any or all property
which may have been sold short, to cancel any or all outstanding transactions
and/or to purchase or sell any other securities or property to offset market
risk, and to offset any indebtedness you may have (either individually or
jointly with others), after which you shall be liable to Bear Stearns for any
remaining deficiency, loss, costs or expenses sustained by Bear Stearns in
connection therewith. Such purchases and/or sales may be effected publicly or
privately without notice or advertisement in such manner as Bear Stearns may
in its sole discretion determine. At any such sale or purchase, Bear Stearns
may purchase or sell the property free of any right of redemption. In
addition, Bear Stearns shall have the right to set off and apply any amount
owing from Bear Stearns or any of its affiliates to you against any
indebtedness in your accounts, whether matured or unmatured.
<PAGE>
5. FEES AND CHARGES. You understand that Bear Stearns may charge
commissions and other fees for execution, custody or any other service
furnished to you, and you agree to pay such commissions and fees at Bear
Stearns' then prevailing rates. You understand further that such commissions
and fees may be changed from time to time, upon thirty days' prior written
notice to you, and you agree to be bound thereby.
6. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the
execution of orders and statements of your account(s) shall be conclusive if
not objected to in writing within five days in the case of reports of
execution, and ten days in the case of account statements, after such
documents have been transmitted to you by mail or otherwise.
7. DEBT BALANCES/TRUTH-IN-LENDING. You hereby acknowledge receipt of
Bear Stearns' Truth-in-Lending disclosure statement. You understand that
interest will be charged on any debit balances in your account(s), in
accordance with the methods described in such statement or in any amendment
or revision thereto which may be provided to you. Any debit balance which is
not paid at the close of an interest period will be added to the opening
balance for the next interest period.
8. CLEARANCE ACCOUNTS. Bear, Stearns Securities Corp. carries your
account(s) as clearing agent for your broker. Unless Bear, Stearns Securities
Corp. receives from you prior written notice to the contrary, Bear Stearns
Securities Corp. may accept from such other broker, without any inquiry or
investigation: (a) orders for the purchase or sale of securities and other
property in your account(s) on margin or otherwise and (b) any other
instructions concerning your account(s) or the property therein. You
understand and agree that Bear Stearns shall have no responsibility or
liability to you for any acts or omissions of such broker, its officers,
employees or agents. You agree that your broker and its employees are
third-party beneficiaries of this Agreement, and that the terms and
conditions hereof, including the arbitration provision, shall be applicable
to all matters between or among any of you, your broker and its employees,
and Bear Stearns and its employees.
9. COSTS OF COLLECTION. You hereby authorize Bear Stearns to charge
you for any reasonable direct or indirect costs of collection including, but
not limited to, attorneys' fees, court costs and other expenses.
10. IMPARTIAL LOTTERY ALLOCATION. You agree that in the event Bear
Stearns holds on your behalf bonds or preferred stocks in street name 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, Inc. or any other appropriate
self-regulatory organization. When any such call is favorable, no allocation
will be made to any account(s) in which Bear Stearns has actual knowledge
that its officers, directors or employees have any financial interest until
all other customers are satisfied on an impartial lottery basis.
11. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear Stearns' failure to
insist at any time upon strict compliance with this Agreement or with any of
the terms hereof nor any continued course of such conduct on its part shall
constitute or be considered a waiver by Bear Stearns of any of its rights or
privileges hereunder. Any assignment of your rights and obligations hereunder
or interest in any property held by or through Bear Stearns without obtaining
the prior written consent of an authorized representative of Bear Stearns
shall be null and void. Notices or other communications, including margin
calls, delivered or mailed to the address provided by you, shall, until Bear
Stearns has received notice in writing of a different address, be deemed to
have been personally delivered to you.
<PAGE>
12. FREE CREDIT BALANCES. You hereby direct Bear Stearns to use any
free credit balance awaiting investment or reinvestment in your account(s) in
accordance with all applicable rules and regulations and to pay interest
thereon at such rate or rates and under such conditions as are established
from time to time by Bear Stearns for such account(s) and for the amounts of
cash so used.
13. RESTRICTIONS ON ACCOUNT. You understand that Bear Stearns, in
its sole discretion, may restrict or prohibit trading of securities or other
property in your account(s).
14. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear Stearns
and your broker, in their discretion, to make and obtain reports concerning
your credit standing and business conduct. You may make a written request
within a reasonable period of time for a description of the nature and scope
of the reports made or obtained by Bear Stearns.
15. SHORT AND LONG SALES. In placing any sell order for a short
account, you will designate the order as such and hereby authorize Bear
Stearns to mark the order as being "short." In placing any sell order for a
long account, you will designate the order as such and hereby authorize Bear
Stearns to mark the order as being "long." The designation of a sell order as
being for a long account shall constitute a representation that you own the
security with respect to which the order has been placed, that such security
may be sold without restriction in the open market and that, if Bear Stearns
does not have the security in its possession at the time you place the order,
you shall deliver the security by settlement date in good deliverable form or
pay to Bear Stearns any losses or expenses incurred as a result of your
failure to make delivery.
16. MARGIN ACCOUNTS. You hereby agree to deposit and maintain such
margin in your margin account(s) as Bear Stearns may in its sole discretion
require, and you agree to pay forthwith on demand any debit balance owing
with respect to any of your margin account(s). Upon your failure to pay, or
at any time Bear Stearns, in its discretion, deems necessary for its
protection, whether with or without prior demand, call or notice, Bear
Stearns shall be entitled to exercise all rights and remedies provided in
paragraphs 2 and 4 above. No demands, calls, tenders or notices that Bear
Stearns may have made or given in the past in any one or more instances shall
invalidate your waiver of the requirement to make or give the same in the
future. Unless you advise Bear Stearns to the contrary, you represent that
you are not an affiliate (as defined in Rule 144(a)(1) under the Securities
Act of 1933) of the issuer of any security held in your account(s).
17. CONSENT TO LOAN OR PLEDGE OF SECURITIES. Within the limits of
applicable law and regulations, you hereby authorize Bear Stearns to lend
either to itself or to others any securities held by Bear Stearns in your
account(s), together with all attendant rights of ownership, and to use all
such property as collateral for its general loans. Any such property,
together with all attendant rights of ownership, may be pledged, repledged,
hypothecated or rehypothecated either separately or in common with other such
property by any amounts due to Bear Stearns thereon or for a greater sum, and
Bear Stearns shall have no obligation to retain a like amount of similar
property in its possession and control.
18. LEGALLY BINDING. You hereby agree that this Agreement and all
the terms hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal representatives, successors and assigns. You agree
that all purchases and sales shall be for your account(s) in accordance with
your oral or written instructions. You hereby waive any and all defenses that
any such instruction was not in writing as may be required by the Statute of
Frauds or any other similar law, rule or regulation.
<PAGE>
19. AMENDMENT; ENTIRE AGREEMENT. You agree that Bear Stearns may
modify the terms of this Agreement at any time upon prior written notice. By
continuing to accept services from Bear Stearns, you will have indicated your
acceptance of any such modifications. If you do not accept such
modifications, you must notify Bear Stearns in writing; your account may then
be terminated by Bear Stearns, after which you will remain liable to Bear
Stearns for all remaining liabilities or obligations. Otherwise, this
Agreement may not be waived or modified absent a written instrument signed by
an authorized representative of Bear Stearns. Except as set forth above, this
Agreement represents the entire agreement and understanding between you and
Bear Stearns concerning the subject matter hereof.
20. NEW YORK LAW TO GOVERN. THIS AGREEMENT SHALL BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
21. ARBITRATION.
- 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 A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
- NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION
AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A
PUTATIVE CLASS ACTION OR WHO IS A MEMBER OF A PUTATIVE CLASS
WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS
ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL:
i. THE CLASS CERTIFICATION IS DENIED;
ii. THE CLASS IS DECERTIFIED; OR
iii. THE CUSTOMER IS EXCLUDED FROM THE CLASS BY
THE COURT. SUCH FORBEARANCE TO ENFORCE AN
AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE
A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT
EXCEPT TO THE EXTENT STATED HEREIN.
YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU BEAR STEARNS AGREES,
THAT CONTROVERSIES ARISING BETWEEN YOU AND BEAR STEARNS, ITS
<PAGE>
CONTROL PERSONS, PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE
SUCCESSORS, ASSIGNS AND EMPLOYEES, WHETHER ARISING PRIOR TO, ON OR SUBSEQUENT
TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION, ANY ARBITRATION UNDER
THIS AGREEMENT SHALL BE HELD AT THE FACILITIES AND BEFORE AN ARBITRATION
PANEL APPOINTED BY THE NEW YORK STOCK EXCHANGE, INC., THE AMERICAN STOCK
EXCHANGE, INC., OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., (AND
ONLY BEFORE SUCH EXCHANGES OR ASSOCIATION). YOU MAY ELECT ONE OF THE
FOREGOING FORUMS FOR ARBITRATION, BUT IF YOU FAIL TO MAKE SUCH ELECTION BY
REGISTERED MAIL OR TELEGRAM ADDRESSED TO BEAR STEARNS SECURITIES CORP., 245
PARK AVENUE, NEW YORK, NEW YORK, 10167, ATTENTION: CHIEF LEGAL OFFICER (OR
ANY OTHER ADDRESS OF WHICH YOU ARE ADVISED IN WRITING), BEFORE THE EXPIRATION
OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM BEAR STEARNS TO MAKE SUCH
ELECTION, THEN BEAR STEARNS MAY MAKE SUCH ELECTION. FOR ANY ARBITRATION
SOLELY BETWEEN YOU AND A BROKER FOR WHICH BEAR STEARNS ACTS AS CLEARING
AGENT, SUCH ELECTION SHALL BE MADE BY REGISTERED MAIL TO SUCH BROKER AT ITS
PRINCIPAL PLACE OF BUSINESS. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY
OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED
IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
22. SEVERABILITY. If any provision herein is or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or 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 to remain in full force and effect.
23. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION. You represent that
you are of legal age and that, unless you have notified Bear Stearns to the
contrary, neither you nor any member of your immediate family is an employee
of any exchange or member thereof, the National Association of Securities
Dealers, Inc. or a member thereof, or of any corporation, firm or individual
engaged in the business of dealing, as broker or principal, in securities,
options or futures, or of any bank, trust company or insurance company.
24. EXTRAORDINARY EVENTS. Bear Stearns shall not be liable for
losses caused directly or indirectly by government restrictions, exchange or
market rulings, suspension of trading, war, strikes or other conditions
beyond its control.
25. HEADINGS. The headings of the provisions hereof are for
descriptive purposes only and shall not modify or qualify any of the rights
or obligations set forth in such provisions.
26. TELEPHONE CONVERSATIONS. For the protection of both you and Bear
Stearns, and as a tool to correct misunderstandings, you hereby authorize
Bear Stearns at Bear Stearns' discretion and without prior notice to you, to
monitor and/or record any or all telephone conversations between you, Bear
Stearns and any of Bear Stearns' employees or agents.
This is a Joint Account, both parties must sign. Persons signing on behalf of
others should indicate the titles or capacities in which they are signing.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT:
<PAGE>
1. THE SECURITIES IN YOUR MARGIN ACCOUNT(S) AND ANY SECURITIES FOR WHICH YOU
HAVE NOT FULLY PAID, TOGETHER WITH ALL ATTENDANT OWNERSHIP RIGHTS, MAY BE
LOANED TO BEAR STEARNS OR LOANED OUT TO OTHERS; and
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT. THIS AGREEMENT CONTAINS A
PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 21.
THIS AGREEMENT DATED AS OF _____________________, 19_____.
- ---------------------------------- -----------------------------------
(Typed or Printed Name)
- ---------------------------------- -----------------------------------
(Signature) (Mailing Address)
- ----------------------------------
(Typed or Printed Name) Account No.:_______________________
- ----------------------------------
(Signature) Date:______________________________
