SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Electric Fuel Corporation
(Name of Issuer)
Common Stock $0.01 Par Value
(Title of Class of Securities)
284871-10-0
(CUSIP Number)
Steven M. Plon, Esquire, Silverman Coopersmith & Frimmer
Two Penn Center Plaza, Suite 910, Philadelphia, PA 19102, (215) 636-4482
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 20, 1997
(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 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
box.
Check the following box if a fee is being paid with the 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 claim 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 13d1(a) for other parties to whom copies are to
be sent.
*The remainder of this coverage page shall be filed 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 action of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
Page 1 of 19 Pages
<PAGE>
13D
1. NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Leon S. Gross S.S. No. ###-##-####
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) x
(b)
3. SEC USE ONLY
4. SOURCE OF FUNDS*
PF and 00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER
3,313,162
8. SHARED VOTING POWER
160,000
9. SOLE DISPOSITIVE POWER
1,408,462
10. SHARED DISPOSITIVE POWER
2,064,700 [1,904,700 shares are subject to Margin Account Agreements and
160,000 are held jointly as a Co-Trustee of the Rose
Gross Charitable Foundation].
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,473,162
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.4% of the issued and outstanding stock
14. TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 19 Pages
<PAGE>
AMENDMENT NO. 6 TO SCHEDULE 13D
This Amendment No.6 to the Schedule 13D dated February 23,
1996, as amended by the First Amendment to Schedule 13D dated
April 30, 1996, the Second Amendment to Schedule 13D dated
September 1, 1996, the Third Amendment to Schedule 13D dated
October 11, 1996, the Fourth Amendment to Schedule 13D dated
December 27, 1996 and the Fifth Amendment to Schedule 13D dated
May 12, 1997 (the "Existing Schedule 13D"), is being filed by the
undersigned in accordance with Rule 13d-2(a) of the general rules
and regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and amends the Existing Schedule
13D to the extent set forth below. Terms defined in the Existing
Schedule 13D are used herein as so defined.
Item 3. Source and Amount of Funds or Other Consideration.
Amend Item 3 of the Existing Schedule 13D by adding the following
paragraph:
28,300 Shares of the Issuer acquired by Mr. Gross in open
market purchases since September 1, 1997 were acquired at a
cost (excluding commissions) of $180,912.50. The funds
required for all of the foregoing shares purchased by
Mr.Gross were provided, in part, by Mr. Gross's personal
funds, and, in part, from funds borrowed by Mr. Gross
through his margin accounts at the Brokerage Firms.
Item 5. Interest in Securities of the Issuer.
The third paragraph of Items 5(a) and (b) of the Existing
Schedule 13D is hereby amended to read as follows:
Mr. Gross beneficially owns 3,473,162 Shares, or 24.4% of
the Common Stock outstanding. Of the 3,473,162 Shares
beneficially owned by him, Mr. Gross has the sole power to vote
3,313,162 Shares. The remaining 160,000 Shares are held jointly
by Mr. Gross and Lawrence M. Miller in their capacities as Co-Trustees of
the Rose Gross Charitable Foundation (the "Foundation"), a charitable
foundation founded by Mr. Gross by Agreement of Trust dated May 28, 1997
(see Item 6 below). Mr. Gross has sole power to dispose of all Shares
beneficially owned by him, except for (i) rights as to disposition for a
total of 1,904,700 Shares granted to the Brokerage Firms under their
respective Margin Account Agreements and (ii) the 160,000 Shares
owned by the Foundation. To the best of Mr. Gross' knowledge,
except as expressly set forth herein, no other person has the
right to receive or the power to direct the receipt of dividends
from, or proceeds of the sale of, the shares of Common Stock held
by him.
(c) Listed below are the acquisitions of Shares by Mr.
Gross which have occurred since September 1, 1997, all of which
were made through open market purchases.
Page 3 of 19 Pages
<PAGE>
Date Number of Shares Price Per Share
October 27, 1997 1,000 $6.375
October 27, 1997 10,000 $6.50
October 28, 1997 5,000 $6.375
October 28, 1997 8,500 $6.375
October 30, 1997 600 $6.375
October 31, 1997 200 $6.375
November 21, 1997 3,000 $6.125
_______
Total 28,300
Mr. Gross has invested in the Shares of the Issuer primarily
because of the possibility that it will be successful in its
business activities. Mr. Gross may make dispositions and
additional purchases subject to a number of factors, including
market prices of the Shares and his continuing review of the
business of and the prospects for the Issuer and general market
and business considerations. Mr. Gross is currently negotiating
the purchase of approximately 86,000 shares of the Company's
common stock from other shareholders in private transactions.
Item 6. Contracts, Arrangements, Understanding or Relationship
With Respect to Securities of the Issuer.
Item 6 of the Existing Schedule 13D is hereby amended by adding
the following paragraphs:
(a) On November 20, 1997, Mr. Gross donated 160,000 Shares
beneficially owned by him to the Foundation, of which Mr. Gross,
along with Lawrence M. Miller, is a Co-Trustee. The Foundation
was formed pursuant to that certain Agreement of Trust dated May
28, 1997 by and between Leon S. Gross, as Settlor and Trustee,
and Lawrence M. Miller, as Trustee. The Foundation, a tax-exempt
organization within the meaning of Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, was formed for
charitable purposes.
(b) Of the 1,904,700 Shares of the Issuer held by Mr. Gross which are
subject to Margin Account Agreements with the Brokerage Firms listed below,
3,000 shares of the Issuer held by Mr. Gross are subject to that certain
Service Client Agreement dated November 25, 1997 by and between Mr. Gross and
Merrill Lynch & Co., Inc.("Merrill Lynch").
(c) Since the filing of the Existing Schedule 13D, Mr. Gross has added to
and moved Shares among the margin accounts he has with the following Brokerage
Firms. As of November 21, 1997, Mr. Gross' Shares are pledged as follows:
Page 4 of 19 Pages
<PAGE>
Brokerage Firm Number of Shares
Advest 29,000
Dean Witter 56,600
Donaldson, Lufkin & Jenrette 262,500
Goldman Sachs 20,000
Gruntal 20,000
Lehman Brothers 1,197,000
Merrill Lynch 3,000
Prudential 316,600
____________
TOTAL 1,904,700
Item 7. Exhibits
Exhibit "1" - Trust Agreement of the Rose Gross
Charitable Foundation dated May 28,
1997.
Exhibit "2" - Service Client Agreement between Mr. Gross
and Merrill Lynch & Co., Inc. dated November
25, 1997
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.
December 3, 1997
Date
/s/ Leon S. Gross
Leon S. Gross
Page 5 of 19 Pages
LEON S. GROSS
TRUST AGREEMENT
THIS AGREEMENT OF TRUST, made and restated as of the 28th
day of May, 1997, by and between LEON S. GROSS of Philadelphia,
Pennsylvania, (hereinafter called "Settlor"), and LEON S. GROSS
of Philadelphia, Pennsylvania, and LAWRENCE M. MILLER, of
Washington, D.C., as Trustees (hereinafter called "Trustees").
W I T N E S S E T H:
Settlor does hereby irrevocably assign, convey, transfer and
deliver to Trustees all Settlor's right, title and interest in
the assets set forth in Schedule "A" attached hereto and made a
part hereof.
Trustees hereby agree to hold the aforesaid property and any
other property, real or personal, that may be added from time to
time to this trust by Settlor or any other person, by Will, Deed,
or otherwise, such proceeds and additions being hereinafter
called principal, IN TRUST, upon the following terms and
conditions:
FIRST: ROSE GROSS CHARITABLE FOUNDATION.
A. The principal shall be used by the
Trustees to establish a charitable foundation to be known as the
"ROSE GROSS CHARITABLE FOUNDATION." The Trustees shall
distribute the income and principal of such Foundation
exclusively to organizations which are tax-exempt within the
meaning of Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the "Code"), and described in each of Sections
170(c), 2055(a) and 2522 (a) of the Code which advance or promote
education, medical research or Jewish causes.
B. The Trustees shall make distributions
from income and, if income is not sufficient, from principal,
from the "ROSE GROSS CHARITABLE FOUNDATION" for the charitable
purposes selected by the Trustees, consistent with the objectives
set forth above, for each taxable year, in such amount, at such
time and in such manner as not to subject the said Foundation to
tax on undistributed income imposed by
Page 6 of 19 Pages<PAGE>
Section 4942 of the Code.
In addition, the Trustees shall have the unrestricted right to
distribute additional income or principal for such charitable
purposes set forth above if a majority of Trustees then serving
shall authorize such use of income or principal.
C. No part of the net earnings of the
Foundation should inure to the benefit of any individual. No
substantial part of the activities of the Foundation should be
involved in carrying on propaganda, or otherwise attempting to
influence legislation. The Foundation shall not participate in,
or intervene in (including the publishing or distributing of
statements), any political campaign on behalf of any candidate
for public office, it being intended that the "ROSE GROSS
CHARITABLE FOUNDATION" be exempt from tax as an organization
described in each of Sections 170(c), 2055(a) and 2522(a) of the
Code, distributions to which from Settlor's estate shall be
deductible under the provisions of Section 2055 of the Code.
D. The Trustees of the "ROSE GROSS
CHARITABLE FOUNDATION" (1) shall not engage in any act of self-dealing
as defined in Section 4941(d) of the Code; (2) shall not
hold or retain any excess business holdings as defined in
Sections 4943(c) of the Code, which would subject the trust to
tax under Section 4943 of the Code; (3) shall not make any
investments which would subject the trust to tax under Section
4944 of the Code; (4) shall not make any taxable expenditures as
defined in Section 4945(d) of the Code, and (5) shall make
distributions, expenditures and investments (within the meaning
of the private Foundation provisions of the treasury regulations)
in such manner and at such times as not to subject it to taxes
under the provisions of Section 4942 of the Code.
E. The Trustees of the "ROSE GROSS
CHARITABLE FOUNDATION" shall not (1) lend any part of the
principal of the trust; (2) make any services available on a
preferential basis to Settlor or any member of Settlor's family;
(3) pay any compensation from income or principal other than
reasonable compensation
Page 7 of 19 Pages<PAGE>
for services rendered, and (4) purchase
or sell securities for other than adequate consideration or
engage in any transaction which diverts income or principal to
Settlor or any member of Settlor's family or any corporation
owned by Settlor or Settlor's family.
F. Upon the dissolution of the trust,
assets shall be distributed for one or more exempt purposes
within the meaning of section 501 (c) (3) of the Internal Revenue
Code, or corresponding section of any future federal tax code, or
shall be distributed to the federal government, or to a state or
local government, for a public purpose. Any such assets not
disposed of shall be disposed of by the Court of Common Pleas of
the county in which the principal office of the trust is then
located, exclusively for such purposes or to such organization or
organizations, as said Court shall determine, which are organized
and operated exclusively for such purposes.
SECOND: Trustees' Powers. In the absolute discretion of
the Trustees, they shall, in addition to the powers given by law,
have the following powers applicable to all property held in
trust whether principal or income, and exercisable without order
of Court:
A. To retain all stocks, bonds and
investments owned by the trust estate, and to invest and reinvest
in other stocks, bonds and investments, without being confined to
what are known as "legal investments", and to sell and transfer
the same, whether in person or by attorney, without liability on
the part of the purchasers to see to the application of the
purchase or consideration monies.
B. To purchase securities at a premium and
to exercise any option to subscribe for stocks, bonds or other
investments; to grant options and proxies; to execute and issue
and deliver letter of investment; and to enter into voting trust
agreements affecting any estate investments.
C. To join in any plan of lease, mortgage,
consolidation, exchange or reorganization of any corporation in
which the trust may hold stocks, bonds, or other investments or
securities.
D. To make distribution of the assets, in
kind, according to their absolute discretion, and at such
valuation as the Trustees shall properly establish therefor.
E. To borrow such sums of money as may be
required for the purpose of the trust created hereunder, and to
secure the loan by a pledge of all or any part of the trust
property, or mortgage, and to execute an accompanying bond
authorizing the confession of judgment and plain or collateral
notes, or other evidences
Page 8 of 19 Pages<PAGE>
of indebtedness. Persons or
corporations advancing money to the Trustees need not inquire
into the necessity, expediency or propriety of such a loan, nor
see to the application of the money advanced.
F. To exercise any elections available to
them under applicable law.
G. To hold securities in a nominee form of
registration.
H. The Trustees, in their sole and
absolute discretion, shall be authorized at anytime, to take
whatever steps are necessary to make the "ROSE GROSS CHARITABLE
FOUNDATION" into a non-profit corporation if the Trustees deem it
advisable.
I. To commingle any funds held in a trust
hereunder for investment purposes and to commingle such funds
with funds held in any other trust established hereunder and/or
funds held in any other trust or trusts established for similar
purposes of the trust established hereunder by Settlor or any
other person.
THIRD: Construction of Trust.
A. In the event that any provision of
Paragraph SECOND conflicts with a rule of law, treasury
regulation or interpretation thereof by the Internal Revenue
Service or the courts as to what is a permissible power or action
to be possessed or taken by a Trustee of a qualifying charitable
foundation, the rule of law, treasury regulation or
interpretation of the Internal Revenue Service or the court shall
control and completely overrule the provision of Paragraph
SECOND, as it pertains the Foundation created hereunder.
B. The "ROSE GROSS CHARITABLE FOUNDATION"
is intended to qualify as a tax exempt organization as described
in Sections 170(c), 2055(a) and 2522(a) of the Code,
distributions to which are deductible by Settlor's estate under
the provisions of Section 2055 of the Code and that this trust be
Page 9 of 19 Pages<PAGE>
exempt from Federal Income Tax as an organization described in
Section 501(c)(3) of the Code. All provisions of this Trust
Agreement affecting such Foundation shall be so construed in
their application and the trust shall be administered in such
manner so as not to impair the validity of the trust for these
purposes under the applicable provisions of the Code, and Settlor
directs further that insofar as any such provision may adversely
affect the tax exempt status of such Foundation, it shall be
disregarded and become inoperative and the Trustees shall be
further authorized to take such actions as is necessary to amend
the provisions of Paragraph FIRST so that it will be so
qualified.
C. Except for willful default or gross
negligence, the Trustees shall not be liable for any act,
omission, loss, damage or expense arising from the performance of
their duties as Trustees, including the act, omission, loss,
damage, or expenses caused by any agent appointed by the
Trustees.
FOURTH: Irrevocable. Settlor expressly declares this
trust to be irrevocable and does not reserve to himself any right
or power to amend or revoke said trust.
FIFTH: Successor Trustees.
A. Settlor reserves the right to appoint
additional Trustees to serve with him in such capacity. In the
event that LEON S. GROSS is unable or unwilling to serve or
continue to serve as Trustee, LAWRENCE M. MILLER shall have the
right to designate additional Trustees to serve with him, if in
his sole and absolute discretion, he wishes to do so.
Notwithstanding anything to the contrary, LEON S. GROSS or
LAWRENCE M. MILLER shall have the right, for any reason, to
remove a Co-Trustee that either of them may have so designated.
In the event of a vacancy in the office of Trustee, and no
Trustee is then serving, Settlor appoints PNC BANK, N.A. to fill
such vacancy. Any individual Trustee may resign at any time
without need for court approval. Any successor or additional
Trustee shall have the same powers, duties and authorities as
though named as an initial Trustee.
Page 10 of 19 Pages<PAGE>
B. The Trustees may, at any time, in their
sole discretion, appoint a corporate fiduciary to serve with them
as co-Trustee of the Foundation created hereunder. The
individual Trustees serving hereunder at any time shall have the
right to remove, with or without cause, the corporate Trustee
then serving, if so appointed. The corporate fiduciary shall
have no voice in the discretion affecting the beneficial
enjoyment of the principal or income of the Foundation. Should a
corporate fiduciary be appointed hereunder, it shall not be
liable for any losses sustained by the trust as a result of
decisions made by the individual Trustees in which it does not
participate. Such corporate fiduciary shall be entitled to
charge Trustee's commissions in accordance with its published,
standard schedule of compensation then in effect, provided such
fees do not exceed rates then prevailing in the metropolitan area
in which it is located.
C. Any lawyer, accountant or other
professional providing legal, accounting or other professional
service to the Charitable Foundation created hereunder, including
the Trustees designated herein or subsequently appointed, shall
be entitled to compensation at their normal hourly rates provided
such compensation is reasonable, plus reimbursement for any
incidental, out of pocket expenses that they may incur, out of
the Charitable Foundation. For purposes of this provision, the
time that any lawyer, accountant or other professional shall
spend on the Charitable Foundation, whether to attend Foundation
meetings or any other legitimate purpose, shall be compensable at
their normal hourly rates.
D. Compensation may be paid to the
individual Trustees other than Settlor and the individual
Trustees shall be reimbursed for all expenditures incident to
their duties as a Trustee. Compensation, expense reimbursement,
and insurance premiums shall be charged upon the principal or
income of the trust established hereunder as Trustees, in their
sole discretion, shall determine.
Page 11 of 19 Pages<PAGE>
E. No bond shall be required of any
Trustee in this or any other jurisdiction.
SIXTH: Situs and Choice of Law. This is a Pennsylvania
Trust, and questions as to the validity, construction and
administration thereof shall be determined in accordance with the
laws of and in the court of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, LEON S. GROSS, Settlor, has hereunto set
his hand and seal and LEON S. GROSS and LAWRENCE M. MILLER,
Trustees, have hereunto set their hands and seals the day and
year first above written.
SIGNED, SEALED AND DELIVERED
IN the presence of: /s/ Leon S. Gross(SEAL)
LEON S. GROSS, Settlor
/s/ Leon S. Gross(SEAL)
LEON S. GROSS, Trustee
/s/ Lawrence M. Miller(SEAL)
LAWRENCE M. MILLER, Trustee
Page 12 of 19 Pages
<PAGE>
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
On this 28th day of May, 1997, before
me personally appeared LEON S. GROSS, Settlor and Trustee, known
to be the person described in and who executed the foregoing
Agreement, and acknowledged that he executed the same as his free
act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal.
MY COMMISSION EXPIRES:
July 8, 2000 /s/ Susie M. Volchy
NOTARY PUBLIC
Page 13 of 19 Pages<PAGE>
STATE OF Washington, D.C. :
: SS
COUNTY OF :
On this 30th day of May, 1997, before
me personally appeared LAWRENCE M. MILLER, Trustee, known to be
the person described in and who executed the foregoing Agreement,
and acknowledged that he executed the same as his free act and
deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal.
MY COMMISSION EXPIRES:
10/31/97 /s/ Cassady
NOTARY PUBLIC
Page 14 of 19 Pages <PAGE>
Schedule "A"
One ($1.00) Dollar
Page 15 of 19 Pages
The Investor CreditLineSM Service Client
Agreement
Note: CMA M CBA and WCMA clients who have
already signed this agreement need not return
this form.
In consideration of your accepting and
carrying one or more accounts for the
undersigned, the undersigned hereby consents
and agrees that:
Applicable Rules and Regulations
1. All transactions shall be subject to the
constitution, rules, regulations, customs and
usages of the exchange or market and its
clearinghouse, if any, on which such
transactions are executed by you (Merill
Lynch, Pierce, Fenner & Smith, Inc.) or your
agents, including your subsidiaries and
affiliates.
Definition
2. For purposes of this agreement,
"securities and other property" shall include,
but not be limited to, money, securities,
financial instruments and commodities of every
kind and nature and all contracts and options
relating thereto, whether for present or
future delivery.
Collateral Requirements and Credit Charges for
the Investor CreditLineSM Service
3. The undersigned will maintain such
securities and other property in the account
of the undersigned for collateral purposes as
you shall require from time to time; and the
monthly debit balance of such accounts shall
be charged, in accordance with your usual
custom, with interest at a rate permitted by
the laws of the State of New York. It is
understood that the interest charge made to
the undersigned's account at the close of a
charge period will, unless paid, be added to
the opening balance for the next charge period
and that interest will be charged upon such
opening balance, including all interest so
added.
Security Interest
4. All securities and other property now or
hereafter held, carried or maintained by you
or by any of your affiliates in your
possession or control, or in the possession or
control of any such affiliate, for any
purpose, in or for any account of the
undersigned now or hereafter opened, including
any account in which the undersigned may have
an interest, shall be subject to a lien for
the discharge of all the indebtedness and
other obligations of the undersigned to you,
and are to be held by you as security for the
payment of any liability or indebtedness of
the undersigned to you in any of said
accounts. You shall have the right to transfer
securities and other property so held by you
from or to any other of the accounts of the
undersigned whenever in your judgment you
consider such a transfer necessary for your
protection. In enforcing your lien, you shall
have the discretion to determine which
securities and property are to be sold and
which contracts are to be closed.
Representations as to Beneficial Ownership and
Control
5. The undersigned represents that, with
respect to securities against which credit is
or may be extended by you: (a) the undersigned
is not the beneficial owner of more than three
percent (3%) of the number of outstanding
shares of any class of equity securities, and
(b) does not control, is not controlled by,
and is not under common control with, the
issuer of any such securities. In the event
that any of the foregoing representations are
inaccurate or become inaccurate, the
undersigned will promptly so advise you in
writing.
Calls for Additional Collateral - Liquidation
Rights
6. (a) You shall have the right to require
additional collateral:
(1) in accordance with your general
policies for the Investor
CreditLineSM service maintenance
requirements, as such may be
modified, amended or supplemented
from time to time; or
(2) if in your discretion you consider
it necessary for your protection
at an earlier or later point in
time than called for by said
general policies; or
(3) in the event that a petition in
bankruptcy or for appointment of a
receiver is filed by or against
the undersigned; or
(4) if an attachment is levied against
the accounts of the undersigned;
or
(5) in the event of the death of the undersigned
(b) If the undersigned does not
provide you with additional collateral as you
may require in accordance with (a) (1) or (3),
or should an event described in (a) (3), (4)
or (5) occur (whether or not you elect to
require additional collateral), you shall have
the right;
(1) to sell any or all securities and
other property in the accounts of
the undersigned with you or with
any of your affiliates, whether
carried individually or jointly
with others;
(2) to buy any or all securities and
other property which may be short
in such accounts; and
(3) to cancel any open orders and to
close any or all outstanding
contracts.
You may exercise any or all of your rights
under (b) (1), (2) or (3) without further
demand for additional collateral, or 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 purchaser for your
own account. It is understood that your giving
of any 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 any such demand, call
or notice as herein provided.
Payment of Indebtedness Upon Demand
7. The undersigned shall at all times be
liable for the payment upon demand of any
debit balance or other obligations owing in
any of the accounts of the undersigned with
you, and the undersigned shall be liable to
you for any deficiency remaining in any such
accounts in the event of the liquidation
thereof, in whole or in part, by you or by the
undersigned; and the undersigned shall make
payment of such obligations and indebtedness
upon demand.
Liability for Costs of Collection
8. To the extent permitted by the laws of
the State of New York, the reasonable costs
and expenses of collection of the debit
balance and any unpaid deficiency in the
accounts of the undersigned with you,
including but not limited to attorney's fees
incurred and payable or paid by you, shall be
payable to you by the undersigned.
Pledge of Securities and Other Property
9. All securities and other property now or
hereafter held, carried or maintained by you
in your possession or control in any of the
accounts of the undersigned may be pledged and
repledged by you from time to time, without
notice to the undersigned, either separately
or in common with other such securities and
other property for any amount due in the
accounts of the undersigned, or for any
greater amount, and you may do so without
retaining in your possession or under your
control for delivery a like amount of similar
securities or other property.
<PAGE>
Lending Agreement
10. In return for the extension or
maintenance of any credit by you, the
undersigned acknowledges and agrees that the
securities in the undersigned's account,
together with all attendant rights of
ownership, may be lent to you or lent out to
others to the extent not prohibited by
applicable laws, rules and regulations. In
connection with such securities loans, you may
receive and retain certain benefits to which
the undersigned will not be entitled. The
undersigned understands that, in certain
circumstances such loans could limit the
undersigned's ability to exercise voting
rights, in whole or part, with respect to the
securities lent.
Presumption of Receipt of Communications
11. Communications may be sent to the
undersigned at the address of the undersigned
or at such other address as the undersigned
may hereafter give you in writing. All
communications so sent, whether by mail,
telegraph, messenger or otherwise, shall be
deemed given to the undersigned personally,
whether actually received or not.
Accounts Carried as Clearing Broker
12. If you are carrying the account of the
undersigned as clearing broker by arrangement
with another broker through whose courtesy the
account of the undersigned has been introduced
to you, then until receipt from the
undersigned of written notice to the contrary,
you may accept from such other broker, without
inquiry or investigation by you (a) orders for
the purchase or sale in said account of
securities and other property on credit
Page 17 of 19 Pages<PAGE>
or otherwise, and (b) any other instructions
concerning said account. You shall not be
responsible or liable for any acts or
omissions of such other broker or his
employees.
Agreement to Arbitrate Controversies
13. 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.
Prearbitration 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 an
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.
The undersigned agrees that all controversies
which may arise between us, including but not
limited to those involving any transaction or
the construction, performance or breach of
this or any other agreement between us,
whether entered into prior, on or subsequent
to the date hereof, shall be determined by
arbitration. Any arbitration under this
agreement shall be conducted only before the
New York Stock Exchange, Inc., the American
Stock Exchange, Inc. or arbitration facility
provided by any other exchange or which you
are a member, the National Association of
Securities Dealers, Inc. or the Municipal
Securities Rulemaking Board, and in accordance
with its arbitration rules then in force. The
undersigned may elect in the first instance
whether arbitration shall be conducted before
the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., other exchange
of which you are a member, the National
Association of Securities Dealers, Inc. or the
Municipal Securities Rulemakeing Board, but if
the undersigned fails to make such election,
by registered letter or telegram addressed to
you at the office where the undersigned
maintains the account, before the expiration
of five days after receipt of a written
request from you to make such election, then
you may make such election. Judgement upon the
award of arbitrators may be entered in any
court, state or federal, having 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, 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.
Joint and Several Liability
14. If the undersigned shall consist of more
than one person, their obligations under this
agreement shall be joint and several.
Representation as in Capacity to Enter into
Agreement
15. The undersigned represents that no one
except the undersigned has an interest in the
account or accounts of the undersigned with
you. If a natural person, the undersigned
represents that the undersigned is of full
age, is not an employee of any exchange, nor
of any corporation of which any exchange owns
a majority of the capital stock, nor of a
member of any exchange, nor of a member firm
or member corporation registered on any
exchange, nor of a bank, trust company,
insurance company or any corporation, firm or
individual engaged in the business of dealing
either as a broker or as principal in
securities, bills or exchange, acceptances or
other forms of commercial paper. If any of the
foregoing representations is inaccurate or
becomes inaccurate, the undersigned will
promptly so advise you in writing.
Extraordinary Events
16. You shall not be liable for loss caused
directly or indirectly by government
restrictions, exchange or market rulings,
suspension or trading, war, strikes or other
conditions beyond your control.
The Laws of the State of New York Govern
17. This agreement and is enforcement shall
be governed by the laws of the State of New
York; and shall cover individually and
collectively all accounts which the
undersigned may open or reopen with you; shall
inure to the benefit of your successors,
whether my merger, consolidation or otherwise,
and assigns, and you may transfer the accounts
of the undersigned to your successors and
assigns; and this agreement shall be binding
upon the heirs, executors, administrators,
successors and assigns of the undersigned.
Amendments
18. The undersigned agrees that you shall
have the right to amend this Agreement, by
modifying or rescinding any of its existing
provisions or by adding any new provision. Any
such amendment shall be effective as of a date
to be established by you, which shall not be
earlier than thirty days after you send
modification of any such amendment to the
undersigned.
Separability
19. If any provision or condition of this
agreement shall be held to be invalid or
unenforceable by any court, or regulatory or
self-regulatory agency or body, such
invalidity or unenforceability shall attach
only to such provision or condition. The
validity of the remaining provisions and
conditions shall not be affected thereby and
this agreement shall be carried out as if any
such invalid or unenforceable provision or
condition were not contained herein.
Headings are Descriptive
20. The heading of each provision hereof is
for descriptive purposes only and shall not be
deemed to modify or qualify any of the rights
or obligations set forth in each such
provision.
CMA, CBA and WCMA clients may have already
signed and returned this agreement. If so,
please disregard.
BY SIGNING THIS AGREEMENT, THE UNDERSIGNED
ACKNOWLEDGES (1) THAT IN ACCORDANCE WITH
PARAGRAPH 13, THE UNDERSIGNED IS AGREEING IN
ADVANCE T ARBITRATE ANY CONTROVERSIES THAT MAY
ARISE WITH YOU; (2) THAT, PURSUANT TO
PARAGRAPH 10 ABOVE, CERTAIN OF THE
UNDERSIGNED'S SECURITIES MAY BE LOANED TO YOU
OR LOANED OUT TO OTHERS; AND (3) RECEIPT OF A
COPY OF THIS AGREEMENT.
Signature /s/Leon S. Gross Date 11-25-97
Title N/A
(For special accounts, example: Trustee)
Signature N/A Date
(Second party if joint account: Co-Trustee)
Title N/A
(For special accounts, example: Co-Trustee)
Account No. _________________
Page 18 of 19 Pages
