0001107416-01-500010.txt : 20011009
0001107416-01-500010.hdr.sgml : 20011009
ACCESSION NUMBER: 0001107416-01-500010
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 1
FILED AS OF DATE: 20010928
GROUP MEMBERS: ERIC D. HOVDE
GROUP MEMBERS: FINANCIAL INSTITUTION PARTNERS, L.P.
GROUP MEMBERS: HOVDE CAPITAL, INC.
GROUP MEMBERS: HOVDE CAPITAL, LTD.
GROUP MEMBERS: STEVEN D. HOVDE
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: FINANCIAL INSTITUTION PARTNERS III LP
CENTRAL INDEX KEY: 0001107416
STANDARD INDUSTRIAL CLASSIFICATION: []
IRS NUMBER: 522199979
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 1824 JEFFERSON PLACE NW
CITY: WASHINGTON
STATE: DC
ZIP: 20036
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: SOBIESKI BANCORP INC
CENTRAL INDEX KEY: 0000934860
STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035]
IRS NUMBER: 351942803
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-52543
FILM NUMBER: 1748897
BUSINESS ADDRESS:
STREET 1: 2930 WEST CLEVELAND ROAD
CITY: SOUTH BEND
STATE: IN
ZIP: 46628
BUSINESS PHONE: 2192718300
MAIL ADDRESS:
STREET 1: 2930 W CLEVELAND
CITY: SOUTH BEND
STATE: IN
ZIP: 46628
SC 13D
1
sobi13d.txt
1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE EXCHANGE ACT OF 1934
Sobieski Bancorp, Inc.
-------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, Par Value $0.01 per share
-------------------------------------------------------------------------------
(Title of Class of Securities)
833582109
-------------------------------------------------------------------------------
(CUSIP Number)
Richard J. Perry, Jr., Esquire
Perry & Associates, P.C.
1826 Jefferson Place, N.W.
Washington, D.C. 20036
(202) 775-8109
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 20, 2001
-------------------------------------------------------------------------------
(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 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 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).
Exhibit Index at page 14
Page 1 of 39
2
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Financial Institution Partners III, L.P. / 52-2199979
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC OO
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
10,675
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
10,675
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,675
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
-------------------------------------------------------------------------------
Page 2 of 39
3
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Hovde Capital, Ltd. / 52-2199941
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Nevada
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
10,675
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
10,675
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,675
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
Page 3 of 39
4
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Financial Institution Partners, L.P. / 52-1899611
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC OO
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
24,700
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
24,700
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,700
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.7%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
-------------------------------------------------------------------------------
Page 4 of 39
5
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Hovde Capital, Inc. / 52-1891904
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
24,700
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
24,700
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,700
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES.
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.7%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
Page 5 of 39
6
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Eric D. Hovde
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(1)
35,375 SHARES
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
35,375 SHARES
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
35,375 SHARES
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES.
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
-------------------------------------------------------------------------------
(1) Of the 35,375 Shares beneficially owned by Eric D. Hovde, 10,675 are as
Chairman, Chief Executive Officer and managing member of Hovde Capital, Ltd.,
and 24,700 are as President of Hovde Capital, Inc.
Page 6 of 39
7
-------------------------------------------------------------------------------
CUSIP NUMBER 833582109
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Steven D. Hovde
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
AF
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(2)
35,375 SHARES
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
35,375 SHARES
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
35,375 SHARES
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES.
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
-------------------------------------------------------------------------------
(2) Of the 35,375 Shares beneficially owned by Steven D. Hovde, 10,675 are as
President and managing member of Hovde Capital, Ltd., and 24,700 are as Chairman
and Chief Executive Officer of Hovde Capital, Inc.
Page 7 of 39
8
Item 1. Security and Issuer
The class of security to which this statement relates is the common stock,
$0.01 par value, of Sobieski Bancorp, Inc. (the "Issuer"). The address of the
principal executive offices of the Issuer is 2930 W. Cleveland Road, South Bend,
Indiana 46628.
Item 2. Identity and Background
The persons filing this statement are Financial Institution Partners III,
L.P., Financial Institution Partners, L.P. (the "Limited Partnerships"), Hovde
Capital, Ltd., Hovde Capital, Inc. (the "General Partners"), Eric D. Hovde, and
Steven D. Hovde who are collectively referred to herein as the "Reporting
Persons." The Limited Partnerships are Delaware limited partnerships formed for
the purpose of investing in, among other things, the equity securities of
various financial institutions and financial services companies. Hovde Capital,
Ltd., a Nevada limited liability company, is the general partner of Financial
Institution Partners III, L.P. Hovde Capital, Inc., a Delaware corporation, is
the general partner of Financial Institution Partners, L.P.
Eric D. Hovde and Steven D. Hovde each hold beneficial interests in the
Shares through ownership of an interest in, and positions as officers and
members of the General Partners. Eric D. Hovde and Steven D. Hovde are also
directors and executive officers of Hovde Financial, Inc. ("Hovde Financial").
Hovde Financial does not beneficially own any of the Shares.
Attached as Schedule 1 hereto and incorporated by reference herein is a
list containing the principal business and the address of its principal business
and offices for the Limited Partnerships and the General Partners as well as
information required by (a) through (f) of this Item as to each executive
officer, director and/or controlling person of the General Partners who are
Reporting Persons. The General Partners control the Limited Partnerships.
None of the Reporting Persons or executive officers, directors or
controlling persons of the General Partners have, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been 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 or finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Information regarding the source and amount of funds used by the Reporting
Persons in acquiring beneficial ownership of their Shares is set forth in
Schedule 2 attached hereto and incorporated herein by reference.
Item 4. Purpose of Transaction
The Reporting Persons have acquired the Shares for investment purposes and
as set forth below:
Each of the Reporting Persons may independently acquire additional Shares
or dispose of some or all of its Shares.
The Reporting Persons expect to evaluate on an ongoing basis their
investment in the Issuer, and may independently from time to time acquire
additional Shares, dispose of Shares or formulate other purposes, plans or
proposals regarding the Issuer or the Shares held by the Reporting Persons in
addition to those discussed above. Any such acquisitions or dispositions may be
made, subject to applicable law, in open market or privately negotiated
transactions or otherwise.
Except as described above, neither the Reporting Persons nor, to the
knowledge of the Reporting Persons, any of the persons named in Schedule 1
hereto have any plans or proposals which related to or would result in any of
the actions or transactions specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Page 8 of 39
9
Item 5. Interest in Securities of the Issuer
(a), (b) Schedule 3 hereto, which is incorporated by reference herein,
sets forth, as of September 28, 2001, information relating to the aggregate
number of Shares of the Issuer and the percentage of the outstanding Shares of
the Issuer as of such date (based upon information provided by the Issuer, there
are 671,962 Shares outstanding as of that date) as to each of the Reporting
Persons. With respect to the Shares set forth on Schedule 3, by virtue of their
control over the Limited Partnerships, all decisions regarding voting and
disposition of the Shares beneficially owned by the Limited Partnerships are
made by the General Partners acting through their chief executive officer,
president or managing members. As such, the Limited Partnerships and the
General Partners share voting and investment power with respect to the Shares.
Therefore, as a result of their ownership interest in, and positions as members
and officers of the General Partners, Eric D. Hovde and Steven D. Hovde may be
deemed to have beneficial ownership of the Shares. Neither the General
Partners, their executive officers or controlling persons beneficially own any
Shares personally or otherwise.
(c) Schedule 4 hereto, which is incorporated by reference herein,
describes, as of September 28, 2001, transactions in the Shares effected during
the past sixty (60) days by the Reporting Persons.
(d) None.
(e) None.
Each of the Reporting Persons disclaims beneficial ownership of Shares
beneficially owned by any of the other Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
None.
Page 9 of 39
10
Item 7. Materials to be filed as Exhibits
Exhibit A - Consent Agreement pursuant to 17 C.F.R. 13d-1(f)(1)
Exhibit B - Addendum to Banc of America Securities LLC
Customer Agreement (3)
Exhibit C - Account Agreement between Banc of America Securities LLC and
Financial Institution Partners III, L.P.
Exhibit D - Prime Broker Agreement between Banc of America Securities LLC
and Financial Institution Partners III, L.P.
Exhibit E - Partnership Agreement between Banc of America Securities LLC and
Financial Institution Partners III, L.P.
Exhibit F - Customer Agreement between Banc of America Securities LLC and
Financial Institution Partners, L.P.
Exhibit G - Prime Broker Agreement between Banc of America Securities LLC and
Financial Institution Partners, L.P.
Exhibit H - Partnership Agreement between Banc of America Securities LLC and
Financial Institution Partners, L.P.
(3) Portions of Exhibit B have been omitted pursuant to a request for
confidential treatment of information in accordance with Rule 24b-2 of the
Securities and Exchange Act of 1934. The confidential section is on file with
the Commission.
Signatures
After reasonable inquiry and to the best of his/its knowledge and belief,
each of the undersigned Reporting Persons certifies that the information set
forth in this statement with respect to him/it is true, complete and correct.
FINANCIAL INSTITUTION PARTNERS III, L.P., by its
General Partner, HOVDE CAPITAL, LTD.
By:
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE CAPITAL, LTD.
By:
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
FINANCIAL INSTITUTION PARTNERS, L.P., by its General
Partner, HOVDE CAPITAL, INC.
By:
------------------------------------------------
Eric D. Hovde
Its: President
HOVDE CAPITAL, INC.
By:
------------------------------------------------
Eric D. Hovde
Its: President
ERIC D. HOVDE
-------------------------------------------------
STEVEN D. HOVDE
-------------------------------------------------
Dated: 09/28/01
Page 10 of 39
11
Schedule 1
INFORMATION RELATING TO REPORTING PERSONS
Principal Business and
Address of Principal Business
Name or Principal Office
---- ------------------------------
Financial Institution Limited partnership formed to
Partners III, L.P. make investments primarily in equity
securities of financial institutions and
financial services companies.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
Hovde Capital, Ltd. Limited liability company formed to serve as
the general partner of Financial Institution
Partners III, L.P.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Nevada
Financial Institution Limited partnership formed to
Partners, L.P. make investments primarily in equity
securities of financial institutions.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
Hovde Capital, Inc. Corporation formed to serve as the general
partner of Financial Institution Partners,
L.P.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Incorporated: State of Delaware
INFORMATION RELATING TO EXECUTIVE OFFICERS, DIRECTORS AND/OR CONTROLLING
PERSONS
NAME PRINCIPAL OCCUPATION
ADDRESS BUSINESS ADDRESS CITIZENSHIP
------- -------------------- -----------
Steven D. Hovde(4) Investment banker U.S.
1629 Colonial Parkway Hovde Financial, Inc.
Inverness, Illinois 60067 1629 Colonial Parkway
Inverness, Illinois 60067
Investment banking firm
Eric D. Hovde (5) Investment banker U.S.
1826 Jefferson Place, N.W. Hovde Financial, Inc.
Washington, D.C. 20036 1826 Jefferson Place, N.W.
Washington, D.C. 20036
Investment banking firm
-------------------------------------------------------------------------------
(4) Steven D. Hovde is affiliated with the following Reporting Persons:
President, Treasurer and Managing Member of Hovde Capital, Ltd. Chairman and
Chief Executive Officer of Hovde Capital, Inc.
(5) Eric D. Hovde is affiliated with the following Reporting Persons: Chairman,
Chief Executive Officer and Managing Member of Hovde Capital, Ltd. President of
Hovde Capital, Inc.
Page 11 of 39
12
SCHEDULE 2
The following table sets forth the amount and source of funds used by each
Reporting Person in acquiring the Shares beneficially owned by it.
Amount
Originally
Total Financed/ Source of
Name Consideration Current Balance Funds
-------------------------------------------------------------------------------
Financial $158,214.93 $79,107.47/ Working Capital/
Institution $79,107.46 Margin Account(6)
Partners III, L.P.
Hovde Capital, Ltd. $158,214.93 $79,107.47/ Working Capital/
$79,107.46 Margin Account of
Affiliate(6)
Financial $364,202.75 $182,101.38 Working Capital/
Institution $182,101.37 Margin Account(7)
Partners, L.P.
Hovde Capital, Inc. $364,202.75 $182,101.38 Working Capital/
$182,101.37 Margin Account
of Affiliate(7)
-------------------------------------------------------------------------------
(6) $79,107.46 was financed through a margin account with Banc of America
Securities LLC at Federal Funds rate +5/8.
(7) $182,101.37 was financed through a margin account with Banc of America
Securities LLC at Federal Funds rate +5/8.
Page 12 of 39
13
SCHEDULE 3
The following table sets forth the number and approximate percentage of
Shares beneficially owned by each of the Reporting Persons. Each of the
Reporting Persons has shared power to vote or to direct the vote and to dispose
or to direct the disposition of the Shares of which each of them, respectively,
possesses beneficial ownership.
Approximate
Name Number of Shares Percentage
---- ---------------- -----------
Financial Institution 10,675 1.6%
Partners III, L.P.
Hovde Capital, Ltd. 10,675 1.6%
Financial Institution 24,700 3.7%
Partners, L.P.
Hovde Capital, Inc. 24,700 3.7%
Eric D. Hovde 35,375 5.3%
Steven D. Hovde 35,375 5.3%
-------------------------------------------------------------------------------
Aggregate Shares Held by 35,375 5.3%
Reporting Persons
Page 13 of 39
14
SCHEDULE 4
Description of Transactions in Shares Effected Within 60 Days.
The Reporting Persons have effected the following transactions in the Shares
within sixty (60) days of September 28, 2001:
-------------------------------------------------------------------------------
Transaction Number of Transaction Transaction Broker
Date Shares Price Type
-------------------------------------------------------------------------------
Financial 09/20/01 2,000 14.875 Buy Redibook
Institution
Partners 09/19/01 1,000 15 Buy Redibook
III, L.P.
09/18/01 4,275 14.9532 Buy Redibook
09/06/01 900 14.5 Buy Redibook
08/28/01 1,000 14.45 Buy Redibook
08/24/01 700 14.45 Buy Redibook
08/22/01 800 14.25 Buy Redibook
-------------------------------------------------------------------------------
EXHIBIT INDEX
Page
Exhibit A - Consent Agreement to 17 C.F.R. 13d-1(f)(1) 15
Exhibit B - Addendum to Banc of America Securities LLC 16
Customer Agreement (8)
Exhibit C - Customer Agreement between Banc of America 17
Securities LLC and Financial Institution
Partners III, L.P.
Exhibit D - Prime Broker Agreement between Banc of America 23
Securities LLC and Financial Institution
Partners III, L.P.
Exhibit E - Partnership Agreement between Banc of America 27
Securities LLC and Financial Institution
Partners III, L.P.
Exhibit F - Customer Agreement between Banc of America 29
Securities LLC and Financial Institution
Partners, L.P.
Exhibit G - Prime Broker Agreement between Banc of America 34
Securities LLC and Financial Institution
Partners, L.P.
Exhibit H - Partnership Agreement between Banc of America 38
Securities LLC and Financial Institution
Partners, L.P.
-------------------------------------------------------------------------------
(8) Portions of Exhibit B have been omitted pursuant to a request for
confidential treatment of information in accordance with Rule 24b-2 of the
Securities and Exchange Act of 1934. The confidential section is on file with
the Commission.
Page 14 of 39
15
EXHIBIT A
Consent Agreement Pursuant to 17 C.F.R. 13d-1(f)(1)
Each of the undersigned hereby consents and agrees to the filing on behalf
of each of them of the foregoing joint statement on Schedule 13D pursuant to 17
C.F.R. 13d-1(f)(1) with respect to his/its beneficial ownership of the shares of
the Issuer.
FINANCIAL INSTITUTION PARTNERS III, L.P., by its
General Partner, HOVDE CAPITAL, LTD.
By:
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE CAPITAL, LTD.
By:
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
FINANCIAL INSTITUTION PARTNERS, L.P., by its
General Partner, HOVDE CAPITAL, INC.
By:
-------------------------------------------------
Eric D. Hovde
Its: President
HOVDE CAPITAL, INC.
By:
-------------------------------------------------
Eric D. Hovde
Its: President
ERIC D. HOVDE
-------------------------------------------------
STEVEN D. HOVDE
-------------------------------------------------
Dated: 09/28/01
Page 15 of 39
16
ASTERISKS USED TO DENOTE LOCATION OF PORTION
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
CONFIDENTIAL SECTION ON FILE WITH THE COMMISSION
EXHIBIT B
[ON NATIONSBANC MONTGOMERY SECURITIES LETTERHEAD]
January 22, 1998
Richard Perry
Hovde Financial, Inc.
1826 Jefferson Place, N.W.
Washington, D.C. 20036
Dear Rick,
Regarding the customer agreement, the following will serve as an addendum:
All margin loans made to you will be governed by standard margin procedures
outlined in the customer agreement. In the event NationsBanc Montgomery
Securities LLC modifies the terms of our mutually agreed upon pricing agreement,
or decides to discontinue, or substantially reduce the level of Prime Brokerage
Services to your firm, *OMITTED - FILED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT - CONFIDENTIAL SECTION ON FILE WITH COMMISSION* NationsBanc Montgomery
Securities LLC shall have the right to make demand for payment of any debit
balance then owing with respect to any of your margin accounts.
Glen Dailey
Senior Managing Director
Page 16 of 39
17
Exhibit C
ACCOUNT AGREEMENT
This agreement sets forth the terms and conditions pursuant to which Banc of
America Securities LLC (BAS) will maintain my Account for purchases and sales of
Securities and Other Property (as defined below). I understand that, if my
Account is a cash account, the provisions of paragraphs 24 & 25 are not binding
upon me unless I enter into a margin transaction, and if my Account is a
commodities account, the provisions of paragraph 16 shall not be applicable.
I agree to notify BAS promptly in writing of any change in information that I
supplied when opening my Account including, but not limited to, change of
address, change in investment objectives, and change in financial circumstances.
Among other things, I represent that, except as disclosed to BAS in writing,
neither I nor any member of my immediate family is (1) a director, 10%
beneficial owner, policy making officer or otherwise an "affiliate" (as defined
in Rule 144 under the Securities Act of 1933, as amended) of a publicly-traded
company or (2) affiliated with or employed by a securities exchange or
corporation of which an exchange controls the majority of the capital stock, or
a securities broker or dealer, or any bank, thrift institution, trust company,
insurance company, investment fund, including a registered investment company,
or any corporation, firm or individual engaged in the business of dealing as
broker or principal in securities, bills of exchange, acceptances or other forms
of commercial paper. If I or a member of my immediate family become so
employed, I shall notify BAS promptly in writing. I represent that I am of the
age of majority according to the laws of my state of residence. I represent
that no one other than me (and to the extent community property stands in my
Account, my spouse) and any other persons signing this Agreement has an interest
in my Account.
1. TRANSACTIONS WITH AND BY AFFILIATES. Certain securities and other assets
including, but not limited to, municipal, government and money market
securities purchased or sold by me through BAS, may be purchased from or
sold to an affiliate of BAS which may act as underwriter, broker, dealer or
placement agent for such securities and assets. BAS' bank or thrift
affiliates may be lenders to issuers of securities that BAS underwrites, in
which case the proceeds of offerings underwritten by BAS may be used for
repayment of such loans. Please refer to the disclosure documents relating
to the securities for additional information.
2. SIPC COVERAGE. BAS is a member of the Securities Investor Protection
Corporation (SIPC) through which the customer accounts are protected in the
event of the firm's insolvency up to $500,000, including a maximum of
$100,000 for free cash balances. BAS has contracted with an outside
insurance carrier to provide up to $99.5 million of additional customer
protection in the event of BAS's insolvency or liquidation. Neither SIPC
nor the additional coverage is the same as or a substitute for FDIC deposit
insurance, and they do not protect against declines in the market value of
your securities or other holdings.
3. AUTHORIZATION TO OPEN CASH ACCOUNT. I request that BAS open a Cash Account
for me. I appoint BAS as my agent for the purposes of buying and selling
securities in my Cash Account. I authorize BAS to open or close my
Account, to place and withdraw orders and to take such other actions to
protect itself in the event I breach any of my obligations. I understand
that BAS may accept orders from em for execution by BAS or others. I
acknowledge that BAS reserves the right in its sole discretion to refuse or
restrict my orders. If at any time BAS considers it necessary for its
protection, it may in its discretion require me to deposit cash or
collateral in my Account to assure due performance by me of my open
contractual commitments. I authorize BAS to act upon my instructions or
those of my attorney-in-fact, designated by me on a form acceptable to BAS,
given by telephone or telegraph, orally, or by facsimile transmission or by
any electronic service that provides access to BAS and agree that BAS may
act upon and shall incur no liability in acting upon any such instructions
as reasonably understood by BAS, provided such instructions reasonably
appear genuine to BAS. I agree that this Agreement covers any and all
transactions heretofore executed for my Account by BAS.
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4. ORDERS, DELIVERIES AND SETTLEMENTS. I will not buy any security through my
Cash Account unless there are, or by Settlement Date there will be,
sufficient funds in my Account to make full cash payment, and I do not
contemplate selling such security before making such payment. Deposits
will be credited to my Account subject to collection. In giving orders to
sell, I agree that all "short" sale orders will be designated as "short"
and all "long" sale orders will be designated as "long." I will not sell
any security designated as "long" through my Cash Account unless I then own
the security and it is either on deposit with BAS or by one (1) day before
the Settlement Date can and will be delivered (including any securities
received as a result of dividends, splits or similar events) to BAS in good
deliverable form, and the placing of such a "long" order shall constitute a
representation by me that I will deliver such security to BAS at least one
(1) day before the Settlement Date. Unless I specifically instruct
otherwise, BAS will treat all orders as market orders to be executed under
current market conditions. I understand that when securities can be traded
in more than one marketplace, in the absence of my specific instructions,
BAS may use its discretion in selecting the markets in which to enter the
order. I will not ask BAS to sell control or restricted securities, as
defined by the federal securities laws, unless I have disclosed to BAS in
writing that such securities are control or restricted securities and
unless I am authorized to engage in such a sale under applicable law. In
connection with a sale of control or restricted securities, I agree to
provide BAS with such notices, information, legal opinions, certifications
or other assurances as BAS may request. I understand that BAS may in its
sole discretion decline to execute any securities transaction for my
Account. If I fail to timely deliver securities sold in good deliverable
form or to deposit timely the total purchase price of securities purchased
as provided by applicable law BAS may, in its sole discretion and WITH
OR WITHOUT NOTICE OR DEMAN, take such steps as BAS deems appropriate either
to complete or to liquidate the transaction, and I shall pay to BAS, UPON
DEMAND, all expenses and losses incurred by BAS in connection therewith.
Furthermore, BAS will be entitled to retain any gain or profit resulting
from its actions after my failure to timely deliver or pay for securities.
If I elect to settle all transactions through my designated transaction
account ("transaction account") with an affiliated bank (Bank), I agree
that on Settlement Date BAS may debit my transaction account for payment
for securities purchased and credit my transaction account with the
proceeds from the sale of securities. I agree to have sufficient funds
available in my transaction account on Settlement Date for all securities
purchased for my Account. I also agree that on Settlement Date BAS may
withdraw securities from my designated safekeeping account ("safekeeping
account") maintained at the Bank to cover the sales of securities made by
me through BAS and deposit fully paid for securities I purchase through BAS
in my safekeeping account. I hereby authorize the Bank to rely on a copy
of this agreement as authority for the Bank to make such transactions.
BAS reserves the right to go directly to the sponsor of any mutual fund or
Unit Investment Trust for purchases. I understand that in these instances,
the sponsor will confirm directly with me.
BAS reserves the right to not accept limit orders in NASDAQ or over-the-
counter securities in which it acts as a market maker.
5. WRITTEN CONFIRMATION; COMMUNICATIONS. Confirmations of transactions and
statements of my Account shall be conclusive as to me if not objected to by
me in writing within five (5) days (or such other period as required by
law) after the date on which such confirmations of transactions and
statements are received by me from BAS. The absence of my objections shall
constitute an acceptance by me of the terms and conditions of such
transactions. Communications may be sent to me at the address set forth
when I opened my Account or at such other address as I instruct in writing.
All communications so sent, whether by mail, telegraph, facsimile
transmission, overnight courier, messenger or otherwise, shall be deemed
received by me personally, whether actually received or not, as of the
earlier of the date they are received by me or the business day following
the day they are dispatched to me. I agree to waive all claims resulting
from failure to receive such communications.
6. FEES AND CHARGES. BAS may charge commissions and other fees for execution
of transactions to purchase and sell Securities and Other Property, and I
agree to pay such commissions and fees at BAS' then prevailing rates. I
also understand that such commissions and fee rates may be changed from
time to time without notice to me and I agree to be bound thereby. I will
also pay BAS' fees for any special services that I request or that are
required by law.
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7. INFORMATION DISCLOSURE. I hereby authorize BAS to disclose information to
others and receive information from others, including credit bureaus or
other agencies, about me, my Account or my Account transactions (1) if the
purpose is to establish or maintain my Account or to complete transactions,
(2) in response to government agency or exchange regulations or pursuant to
inquiries or court orders or as otherwise provided by law or valid legal
process, and (3) in any suit, action or other proceeding in which
disclosure is necessary or appropriate in BAS' judgement to protect its
interest. Pursuant to Rule 14b-1 under the Securities Exchange Act of
1934, BAS may disclose my name, address, and securities positions to
requesting companies in which I am a shareholder unless I sent written
objection to BAS.
8. DEFINITION OF SECURITIES AND OTHER PROPERTY. Securities and Other Property
shall include, but not be limited to, money, instruments, commodities,
security entitlements and securities of every kind and nature and all
contracts and actions relating thereto and all proceeds therefrom and all
dividends and interest thereon, whether for present or future delivery, now
or hereafter held, carried or maintained by BAS in or for any of my
Accounts, now or hereafter opened, including any Account(s) in which I may
have an interest.
9. SECURITY INTEREST. I grant BAS a continuing security interest in, lien on,
and right to set-off with respect to, all Securities and Other Property now
or hereafter held or carried by BAS in my Accounts, including any
Securities and other Property in transit or held by others on behalf of
BAS, and in any transaction or safekeeping accounts or money market funds
that I have designated for BAS to debit and credit in connection with my
Account, and all proceeds of the foregoing, as collateral security for the
payment and performance of all my obligations to BAS, now existing or
hereafter arising, whether or not such obligations arise under this
Agreement or any other agreement between us, together with all expenses of
BAS in connection therewith. If I fail to pay or perform any obligation,
or if I am in default, BAS shall have, in addition to the rights provided
herein or by other applicable law, all the rights and remedies provided to
a secured party under the Uniform Commercial Code as then in effect in the
State of New York. In enforcing its security interest, lien or right to
set-off, BAS, in its sole discretion, may determine which Securities and
Other Property are to be bought or sold and the order in which they are to
be sold and which contracts are to be closed.
10. TRANSFER. BAS shall have the right to transfer Securities and Other
Property held by BAS from or to my Account whenever BAS, in its sole and
absolute discretion, considers such a transfer necessary for its
protection.
11. IMPARTIAL LOTTERY SYSTEM. When BAS holds, on my behalf, bonds, options or
preferred stock in street name or bearer form which are callable in part, I
agree to participate in the impartial lottery allocation system of the
called securities in accordance with the rules of the applicable exchange
or depositories.
12. NON-WAIVER; CHANGE OF TERMS. BAS' failure to insist at any time upon
strict compliance with this Agreement or with any of its terms shall not
constitute a waiver by BAS of any of its rights hereunder. Except as
otherwise provided for herein, no provision of this Agreement shall in any
respect be waived or modified. BAS MAY ADD, DELETE OR AMEND THE TERMS,
CONDITIONS AND OTHER PROVISIONS OF THIS AGREEMENT FROM TIME TO TIME BY
WRITTEN NOTICE TO ME. To the extent this Agreement is inconsistent with
any other agreement governing my Account or any confirmation of a
transaction, this Agreement shall govern.
13. GOVERNING LAW. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK (without regard to any principles of
conflicts of law) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN.
14. SEVERABILITY. If any provision or condition of this Agreement shall be
held to be invalid or unenforceable by any court, regulatory or self-
regulatory agency or body or arbitration tribunal, such invalidity or
unenforceability shall attach only to that 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.
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15. LIMITATION ON LIABILITY. I acknowledge and agree that BAS shall not be
liable for any liability, loss or damage caused directly or indirectly by
events beyond the reasonable control of BAS, including, but not limited to
government restrictions, lockout, natural disaster (including earthquake),
riot or other civil disturbance, exchange or market ruling, suspensions of
trading, war, strike, interruption or other failure of transportation,
communication, or data processing services, or other conditions beyond its
control. Further, in acting hereunder, I acknowledge and agree that BAS
shall not be liable for any loss or other claim of injury with respect to
my Account except for its gross negligence or willful misconduct.
16. ARBITRATION. All disputes hereunder will be submitted to arbitration. I
am aware that:
- 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.
ARBITRATION AGREEMENT
Any dispute with respect to my Account shall be subject to and governed by
the following ARBITRATION AGREEMENT:
To the extent permitted by law, any controversy arising out of or
relating to my Account, my relationship with BAS or this Agreement or the
breach thereof shall be submitted to arbitration conducted under the
Constitution and Rules of the Board of Governors of the New York Stock
Exchange, Inc. or the Code of Arbitration Procedure of the National
Association of Securities Dealers ("NASD"). An arbitration must be commenced
by service upon the other party or parties of a written demand for
arbitration or a written notice of intention to arbitrate, including
selection of the arbitration tribunal. If I initiate the demand for
arbitration and do not make such election by registered mail addressed to BAS
at its main office within five (5) days thereafter, then BAS may make such
election on my behalf. If BAS initiates arbitration, it may select the
arbitration tribunal. Judgment upon any award rendered by the arbitrator(s)
shall be final, and may be entered in any court having jurisdiction. This
ARBITRATION AGREEMENT does not constitute a waiver of my right to a judicial
forum in instances in which such a waiver should be void under the applicable
federal or state laws, including the Federal Arbitration Act. The Federal
Arbitration Act will apply to any dispute subject to arbitration under this
ARBITRATION AGREEMENT, notwithstanding any contrary choice of law provision
in this Agreement. I specifically acknowledge and agree that in addition to
and without waiver of this binding ARBITRATION AGREEMENT, BAS shall be
entitled to provisional remedies, including the remedies of prejudgment writs
of attachment, or injunction, available in any court 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 Account Agreement except to the
extent stated herein.
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17. JOINT ACCOUNTS. In consideration of BAS opening or maintaining an Account
in the names of two or more persons as listed on the Account ("Joint
Account Holders"), the Joint Account Holders jointly and severally agree
that their obligations on the Account and under the Agreement shall be
joint and several and that each of them shall have authority on behalf of
the JOINT ACCOUNT to buy, sell and otherwise deal in stocks, bonds, and
other investments; to receive on behalf of the JOINT ACCOUNT demands,
notices, confirmations, reports, statements of Account and communications
of every kind; to receive on behalf of the JOINT ACCOUNT, Securities and
Other Property; to make agreements on behalf of the JOINT ACCOUNT relating
to any of the foregoing matters, and to terminate or modify same or waive
any of the provisions thereof; and generally to deal with BAS on behalf of
the JOINT ACCOUNT as fully and completely as if each of them alone were
interested in said JOINT ACCOUNT, all without notice to the other Joint
Account Holders.
BAS is authorized to follow the instructions of any of the Joint Account
Holders in every respect concerning the JOINT ACCOUNT and to make
deliveries to any of the Joint Account Holders or upon his/her
instructions, of any or all Securities and Other Property in the JOINT
ACCOUNT, and to make payments to any of the Joint Account Holders, or upon
his/her order, of any or all monies at any time or from time to time in the
JOINT ACCOUNT as he/she may order and direct, even if such deliveries and
or payments shall be made to him/her personally, and not for the JOINT
ACCOUNT. In the event of any such deliveries of Securities or Other
Property or payments of monies to any of the Joint Account Holders as
aforesaid, BAS shall be under no duty or obligation to inquire into the
purpose or propriety of any such demand for delivery of securities and
other properties or payment of monies, and BAS shall not be bound to see to
the application or disposition of any securities and/or monies so delivered
or paid to any of the Joint Account Holders or upon his/her order. The
authority hereby conferred shall remain in force until written notice of
the revocation addressed to BAS is delivered at its main office. In the
event that BAS receives inconsistent instructions from the Joint Account
Holders or a court order, BAS may suspend or close the JOINT ACCOUNT by
giving written notice to the Joint Account Holders.
Unless otherwise indicated in a written notice received by BAS, it is the
express intention of the Joint Account Holders that ownership of the JOINT
ACCOUNT be vested in them as joint tenants with rights of survivorship and
not as tenants in common or as tenants by the entirety. In the event of
the death of either or any of the Joint Account Holders, the entire
interest in the JOINT ACCOUNT shall be vested in the survivor or survivors
on the same terms and conditions as theretofore held, without in any manner
releasing the Joint Account Holders or their estates from the liability
provided for in this Agreement. (NOTE: If the parties do not wish to be
joint tenants with rights of survivorship, they must obtain from BAS the
applicable agreement and execute and deliver that agreement to BAS.)
18. APPLICABLE REGULATIONS. All transactions are subject to the constitution,
laws, rules, customs, usages and interpretations of the exchange or market
and the clearing house, if any, where executed and to applicable Federal
and State laws, and the rules of any government agency or financial
industry self-regulatory organization having authority with respect
thereto.
19. BINDING EFFECT, ASSIGNMENT. This Agreement and its terms shall be binding
upon my heirs, executors, successors, administrators, assigns, committee
and conservator ("successors"). In the event of my death, incompetence, or
disability, whether or not any successors of my estate and property shall
have qualified or been appointed, until BAS has written notice of my death
or incompetence BAS may continue to operate as though I were alive and
competent and BAS may liquidate my Account WITHOUT PRIOR WRITTEN NOTICE TO
OR DEMAND upon my successors. This Agreement shall inure to the benefit of
BAS' successors and assigns, whether by merger, consolidation or otherwise
(and BAS may transfer my Account and this agreement to any such successors
and assigns) WITHOUT NOTICE. You may not assign your rights or delegate
your duties under this Agreement without BAS' consent. With prior notice
to you, BAS may assign or transfer any or all of its rights and obligations
under this Agreement and your Account(s) to any other direct or indirect
wholly owned subsidiary of Bank of America Corporation that is registered
as a broker-dealer under the Securities Exchange Act of 1934.
20. ALL ACCOUNTS. THIS AGREEMENT SHALL COVER MY RELATIONSHIP WITH BAS,
INCLUDING INDIVIDUALLY AND COLLECTIVELY ALL ACCOUNTS THAT I MAY OPEN OR
REOPEN WITH BAS. CERTAIN ACCOUNTS, SUCH AS MARGIN ACCOUNTS OR OPTIONS
ACCOUNTS, ARE SUBJECT TO SEPARATE DOCUMENTATION CONTAINING ADDITIONAL
REQUIREMENTS.
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CASH/MARGIN
21. TERM. This Agreement shall become effective on its acceptance by BAS. I
may close my Account by giving written notice to BAS. BAS may close my
Account by giving me written notice. When my Account is closed, BAS will
return to me, or follow my instructions for the transfer of, any Securities
and Other Property remaining in my Account and will no longer accept orders
for transactions after the date of closing subject to my having satisfied
all obligations and paid all indebtedness owing to BAS.
22. PAYMENT FOR ORDER FLOW POLICY. BAS' policy is that it will not accept
remuneration for directing orders to particular brokers/dealers or market
centers for execution. Notwithstanding this policy, should BAS receive
such remuneration on any transaction, appropriate disclosure will be made.
23. RECORDING OF TELEPHONE CONVERSATIONS. ANY OF MY TELEPHONE CONVERSATIONS
WITH BAS MAY BE RECORDED TO ASSURE ACCURACY. I CONSENT TO SUCH RECORDING.
TRANSFER.
24. MARGIN IN MARGIN ACCOUNTS (NOT APPLICABLE TO CASH ACCOUNTS). I hereby
agree to maintain such margin in my margin and/or good faith account as BAS
may in its discretion require and I agree to pay forthwith on demand any
debit balance owing with respect to any such Account, and if not paid this
shall be a breach of this Agreement and BAS may take such action as it
considers necessary for its protection in accordance with this Agreement.
I understand that even if BAS has a policy of giving customers notice of a
margin deficiency, BAS is not obligated to request additional margin from
me, and there may be circumstances where BAS will liquidate securities
and/or other property in my Account without notice to me. I understand I
will be charged interest on my debit balance which if not paid at the close
of interest period will be added to the opening balance for the next
interest period. Consult the attached Truth-In-Lending disclosure
statement for an outline of BAS' interest policies.
25. CONSENT TO LOAN OR PLEDGE SECURITIES AND OTHER PROPERTY (NOT APPLICABLE TO
CASH ACCOUNTS). I hereby authorize BAS to lend either to itself or to
others any Securities and Other Property held by BAS in my margin and/or
good faith Account and to carry all such property in its general loans and
such property may be pledged, repledged, hypothecated or rehypothecated,
without notice to me, either separately or in common with other such
property for any amounts due to BAS thereon or for a greater sum, and BAS
shall have no obligation to retain a like amount of similar property in its
possession and control. BY SIGNING THIS AGREEMENT I ACKNOWLEDGE THAT THE
SECURITIES AND OTHER PROPERTY IN MY MARGIN ACCOUNT MAY BE LOANED TO BAS OR
LOANED OUT TO OTHERS AND THAT I HAVE RECEIVED AND/OR REVIEWED A COPY OF
THIS AGREEMENT.
26. RECEIPT OF TRUTH-IN-LENDING. I hereby acknowledge receipt and review of
the attached Truth-In-Lending disclosure statement. I understand that
interest will be charged on any debit balances in accordance with the
methods described in that statement or in any amendment or revision thereto
that may be provided to me. It is understood and agreed that the interest
charge made to my Account at the close of one charge period will be
compounded, unless paid; that is, the unpaid interest charge for previous
periods will be added to the opening balance for the next charge period,
thereby becoming part of the principal amount due bearing like interest.
27. CLEARANCE ACCOUNTS. If BAS carries my Account as clearing broker by
arrangement with another broker through whose courtesy my Account has been
introduced, then unless BAS receives from me a written notice to the
contrary, BAS shall accept from such other broker, without any inquiry or
investigation by BAS, (i) orders for purchase and sale of Securities and
Other Property on margin or otherwise, and (ii) any other instructions
concerning said Account. I understand BAS shall have no responsibility or
liability to me for any acts or omissions of such other broker, its
officers, employees or agents.
28. NOTICES and REDEMPTIONS. Notice or other communications, including margin
calls, delivered or mailed to the address given when opening my Account,
until BAS has received notice in writing of a different address, shall be
deemed to have been personally delivered to me.
I understand that equity securities, fixed income securities, mutual fund shares
and other securities:
- Are NOT insured by the FDIC or any other government entity;
- Are NOT deposits or other obligations of, or guaranteed by Bank of
America Corporation or any of its affiliates (unless explicitly stated
otherwise);
- Are subject to investment risks, including possible loss of the
principal amount invested.
I certify that I have read, understand and agree specifically to the terms set
forth in this Agreement including, but not limited to, the Arbitration Agreement
which can be found on page 3 item 16.
Financial Institution Partners III, L.P.
By: Richard J. Perry, Jr.
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Typed or Printed Name of Investor Typed or Printed Name of Joint Investor
/s/ Richard J. Perry, Jr. 11/5/99
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Signature of Investor Date Signature of Joint Investor Date
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EXHIBIT D
Banc of America Securities LLC
PRIME BROKER AGREEMENT
In accordance with the requirements set forth in the January 25, 1994 No-Action
Letter of the Division of Market Regulation of the Securities and Exchange
Commission (the "No-Action Letter"), Banc of America Securities LLC ("BAS"), a
North Carolina corporation, and each Customer on whose behalf this agreement has
been executed ("Customer"), hereby agree as follows.
1. As of October 3, 1994 or such later date when the No-Action Letter shall
become effective, this Agreement shall apply to all transactions in which
BAS is given up as the prime broker for Customer; i.e. transactions
executed for Customer by one or more executing brokers (each, an "Executing
Broker"), which transactions are submitted to BAS for clearance and
settlement.
2. If Customer is the beneficial owner of an account managed by an Investment
Advisor registered with the Securities and Exchange Commission under the
Investment Advisors Act of 1940 or such other authorized agent, attorney in
fact or third party ("Investment Advisor"), then this Agreement has been
executed on Customer's behalf by such Investment Advisor. Each Customer on
whose behalf this Agreement has been executed is named on Schedule A
hereto, as such Schedule may be modified from time to time. Investment
Advisor represents and warrants that it has on file written authorization
to execute agreements on behalf of each Customer named on Schedule A and
shall indemnify and hold BAS harmless from any claim or claims arising from
Investment Advisor's unauthorized execution of this Agreement on any such
Customer's behalf.
3. All Executing Brokers through whom Customer or Investment Advisor, as the
case may be, is initially authorized to execute prime brokerage
transactions are identified on Schedule B hereto. Prior to entering into a
prime brokerage transaction with an Executing Broker not identified on
Schedule B. Customer or Investment Advisor shall state in a writing sent
via facsimile to BAS that it desires to do so and confirm with BAS that a
prime brokerage agreement has been executed- between BAS and such Executing
Broker. Upon execution of a prime brokerage agreement between BAS and such
Executing Broker, Schedule B hereto shall be deemed automatically amended
to include such Executing Broker and, only thereafter, may Customer execute
prime brokerage transactions with such Executing Broker pursuant to this
Agreement.
4. Customer or Investment Advisor, as the case may be, will promptly notify
BAS of each transaction executed by an Executing Broker on Customer's
behalf, no later than the close of business on trade date. At a minimum,
such notice will include the security involved, the number of shares or
units, the price per share or unit, whether the transaction was a long or
short sale or a purchase, the Executing Broker and the Executing Broker's
commission.
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5. On the next business day following trade date, BAS will send to Customer,
or if requested in writing, to Investment Advisor, notification confirming
the details of each transaction executed by Executing Broker on Customer's
behalf, based upon the information provided to BAS by Customer or
Investment Advisor. Such notification will include all information required
for a confirmation pursuant to Rule 10b-10 under the Securities Exchange
Act of 1934 ("Rule 10b-10"), except the capacity of the executing broker,
an average price designation, and, in principal trades, the reported trade
price and the difference between that price and the net price to Customer,
if this information has not been provided to BAS by Customer or Investment
Advisor. In addition, the notification will disclose any transaction-based
charges imposed by BAS and any commission charged by Executing Broker.
6. BAS will settle transactions on Customer's behalf, unless, during the time
permitted for disaffirmations under the agreement then in effect between
BAS and Executing Broker, BAS disaffirms all unsettled transactions of
Customer that BAS determines to disaffirm in good faith and in accordance
with reasonable commercial standards. BAS will promptly send to Customer or
Investment Advisor, as applicable, a notice of cancellation of all
disaffirmed transactions to offset any notifications sent previously. BAS
shall not be responsible for the clearance and settlement of transactions
that it disaffirms. Rather, Customer shall be responsible and liable solely
to Executing Broker(s) for the clearance and settlement of such
transactions.
7. Without limiting the generality of the foregoing, if Customer is the
beneficial owner of an account managed by an Investment Advisor registered
under the Investment Advisor's Act of 1940, BAS, in its sole and absolute
discretion, may elect not to settle prime brokerage transactions on behalf
of Customer if Customer fails to maintain in its account with BAS minimum
net equity of at least $250,000 in cash or securities with a ready market
as defined in Rule 15c3-l(c)(11) under the Securities Exchange Act of 1934.
Otherwise, if Customer is not the beneficial owner of an account managed by
an Investment Advisor registered under the Investment Advisor's Act of
1940, BAS, in its sole and absolute discretion, may elect not to settle
prime brokerage transactions on behalf of Customer if Customer fails to
maintain in its account with BAS minimum net equity of at least $1,000,000
in cash or securities with a ready market as defined in Rule 15c3-l(c)(11)
under the Securities Exchange Act of 1934.
8. Furthermore, in the event net equity in Customer's account with BAS falls
below the minimum amount set forth in the No-Action Letter, Customer shall
have until 12:00 noon of the fifth business day following the date on which
net equity fell below the minimum amount to restore net equity to the level
required in the No-Action Letter. If Customer fails to restore net equity
to the required level, BAS shall notify each Executing Broker, by the same
day's close of business, that BAS is no longer acting as Prime Broker for
Customer. As of the day following such notice, BAS may not accept any prime
brokerage transactions commenced on behalf of Customer.
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9. So long as this Agreement is in effect, BAS will be responsible to ensure
that all transactions which it has affirmed and not subsequently
disaffirmed, and is obligated to clear, are cleared between BAS and
Customer, and accordingly, appear on BAS's books in either a cash or margin
account for Customer and conform to Regulation T promulgated by the Board
of Governors of the Federal Reserve System and applicable self regulatory
organization margin requirements.
10. Customer may instruct, in a writing separate from the prime brokerage
agreement between Customer and Executing Broker, Executing Broker to send
confirmations of transactions, as required by Rule l0b-10, to Customer in
care of BAS. Confirmations received by BAS on Customer's behalf are
available to Customer without charge, promptly upon request. The parties
acknowledge that providing such an instruction is not a condition to
entering into this Agreement, nor shall Customer be charged differential
fees or otherwise receive incentives for providing such an instruction.
11. BAS is hereby authorized to disclose Customer's name and address to each
Executing Broker identified on Schedule B. as such Schedule may be modified
from time to time, to enable such Executing Broker to establish on its
books an account for Customer to be used in the event transactions are
disaffirmed by BAS.
12. BAS will issue to Customer a statement of account at least on a quarterly
basis. The statement will include all transactions that occurred during the
statement period and the resultant security positions and money balances.
13. Customer represents and warrants that it is currently in compliance, and
during the term of this Agreement will remain in compliance, with all
applicable requirements of the No-Action Letter, and any supplements or
amendments thereto; including, in particular, the requirement that it
execute an agreement similar to this Agreement with each Executing Broker
at any point in time identified on Schedule B.
14. In the event of an inconsistency between any term or terms of this
Agreement and those of any Cash Account Agreement, Margin Agreement or
Clearing Agreement between the parties, this Agreement shall control to the
extent of such inconsistency.
15. This Agreement may be amended or modified only by BAS upon prior written
notice to Investment Advisor or Customer. Such amendment or modification
shall become effective immediately in the event Customer continues to
accept prime brokerage services from BAS after the date on which such
notice is given.
16. This Agreement may be terminated by either party hereto upon prior written
notice. Any such termination shall not affect Customer's liabilities and
obligations to BAS with respect to transactions executed prior to such
termination.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict of law
principles thereof.
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18. (a) Arbitration is final and binding on the parties.
(b) The parties are waiving their rights to seek remedies in court,
including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different
from court proceedings.
(d) The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modifications
or rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
ANY CONTROVERSY BETWEEN BAS OR ANY OF ITS AFFILIATES OR ANY OF ITS OR THEIR
PARTNERS, OFFICERS, DIRECTORS OR EMPLOYEES ON THE ONE HAND, AND CUSTOMER AND/OR
INVESTMENT ADVISOR ON THE OTHER HAND, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACCOUNTS ESTABLISHED HEREUNDER, SHALL BE SETTLED BY
ARBITRATION, IN ACCORDANCE WITH THE RULES THEN OBTAINING OF THE NEW YORK STOCK
EXCHANGE, INC. (OR SUCH OTHER ARBITRATION PANEL OR BOARD AS MAY BE REQUIRED BY
LAW). ANY AWARD OF THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT UPON THE AWARD
RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement, WHICH IS
ACKNOWLEDGED TO CONTAIN A PRE-DISPUTE ARBITRATION CLAUSE, to be duly executed
and delivered as of the date set forth below.
Financial Institution Partners III, L.P.
-----------------------------------------
CUSTOMER OR INVESTMENT ADVISOR ACCEPTED AND AGREED TO:
BANC OF AMERICA SECURITIES LLC
By: HOVDE CAPITAL, LTD., general partner AS PRIME BROKER
By: /s/ Richard J. Perry, Jr. By:
----------------------------------------- ----------------------------
Richard J. Perry, Jr., Secretary
----------------------------------------- ----------------------------
Print Name and Title Print Name and Title
Date: 11/5/99 Date:
------- ------
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27
EXHIBIT E
Banc Of America Securities LLC
________________________________
ACCOUNT NUMBER
________________________________
ACCOUNT NAME
PARTNERSHIP AGREEMENT
Ladies and Gentlemen:
In consideration of your opening and carrying a partnership account in the name
of Financial Institution Partners III, L.P. a duly organized partnership (the
"Partnership") of which each of the undersigned is a general partner, the
undersigned jointly and severally agree that each of the following persons, to
wit:
Eric D. Hovde Steven D. Hovde
-------------------------------- --------------------------------
Richard J. Perry, Jr.
-------------------------------- --------------------------------
are hereby appointed the authorized agents and attorneys-in-fact of the
Partnership (the "Authorized Agents"), and shall have authority on behalf of the
Partnership, and for its account and risk, to buy, sell (including short sales),
tender, convert, exchange, trade and otherwise deal in, through you as brokers,
stocks, bonds, options and any other securities (on margin or otherwise) in
accordance with your terms and conditions for the Partnership account.
You are authorized to follow the instructions of the Authorized Agents in every
respect concerning said account, and to deliver to them on behalf of the
Partnership account all demands, notices, confirmations, reports, statements of
accounts, and communications of every kind; to deliver to them on behalf of the
Partnership account money, securities and property of every kind, and to follow
the orders of said Authorized Agents regarding the same. The Authorized Agents
are hereby authorized to execute and deliver on behalf of the Partnership
account agreements relating to any of the foregoing matters and to terminate or
modify same or waive any of the provisions thereof; and generally to deal with
you on behalf of the Partnership account as fully and completely as if each
alone were interested in said accounts, all without notice to the other or
others interested in said account.
This Authorization and indemnity is in addition to, and in no way limits or
restricts, any rights which you have under any other agreement or agreements
between you and the undersigned, or any of them, now existing or hereafter
entered into, and is binding on the Partnership and its legal representatives,
successors and assigns. This authorization and indemnity is also a continuing
one and shall remain in full force and effect until revoked by a written notice,
addressed to you and delivered to you at your principal office in San Francisco.
No such revocation shall affect any liability arising out of any transaction
initiated prior to such revocation. The undersigned, jointly and severally agree
to indemnify and hold you harmless from and to pay you promptly on demand any
debit balance in said account, including any loss or debit balance resulting
from transactions initiated prior to receipt of such revocation.
The undersigned hereby certify that the general and/or limited partners of said
Partnership are as follows: *
Name N/A Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
*or attach signature page(s) of partnership
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Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
The undersigned further authorizes you, in the event of death or retirement of
any of the general and/or limited partners of said Partnership, to take such
proceedings, require such papers, retain such portions or restrict transactions
in said account as you may deem advisable to protect you against any liability,
penalty or loss under any present or future laws or otherwise. It is further
agreed that in the event of the death or retirement of any member of the said
Partnership the remaining members will immediately cause you to be notified of
such fact.
This Authorization and indemnity and its enforcement shall be governed by the
laws of the State of New York, shall cover individually and collectively all
accounts covered by this agreement and authorization which the undersigned may
open or reopen with you, and shall inure to the benefit of your present
organization, and any successor organization, irrespective of any change or
changes of any kind of the personnel thereof for any cause whatsoever, and of
the assigns of your present organization or any successor organization.
Customer consent to loan or pledge of securities and other property (not
applicable to cash accounts): each of the undersigned has signed the enclosed
Customer's Agreement and Customer's Loan Consent which are intended to cover, in
addition to the provisions hereof, the terms upon which the Partnership is to be
carried.
Very truly yours,
HOVDE CAPITAL, LTD.
Dated: 11/5/99 By: /s/ Richard J. Perry, Jr.
-------------- ----------------------------
General Partner(s)
________________________________
________________________________
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29
EXHIBIT F
CUSTOMER AGREEMENT
This agreement sets forth the terms and conditions pursuant to which we,
NationsBanc Montgomery Securities LLC, and our successors and assigns, will
maintain your account for purchases and sales of "securities and other
property," which means, but is not limited to securities, financial instruments,
commodities and money of every kind and nature and related contracts and
options. This definition includes securities or other property currently or
hereafter held, carried or maintained by, or in the possession or control of, us
or any of our related entities for any purpose in and for any account now or
hereafter opened by you. You understand that, if your account is a cash account,
the provisions of paragraphs 18 & 19 are not binding upon you unless you enter
into a margin transaction and, if your account is a commodities account, the
provisions of paragraph 14 shall not be applicable.
1. APPLICABLE LAW AND REGULATIONS. All transactions in your account shall be
subject to all applicable laws and the rules and regulations of all federal,
state and self-regulatory agencies, including, but not limited to, the Board
of Governors of the Federal Reserve System and the constitution, rules,
customs and usages of the exchange or market (and its clearing house) where
the transactions are executed.
2. SECURITY INTEREST AND LIEN. All securities or other property which we may at
any time be carrying or maintaining for you or which may at any time be in
our possession or control for any purpose, including safekeeping, shall be
subject to a general lien for the discharge of all of your obligations to us,
irrespective of whether or not we have made advances in connection with such
securities or other property, and irrespective of the number of accounts you
may have with us.
3. DEPOSITS ON CASH TRANSACTIONS. If at any time NationsBanc Montgomery
Securities LLC considers it necessary for its protection, it may in its
discretion require you to deposit cash or collateral in your account to
assure due performance by you of your open contractual commitments.
4. BREACH OR DEFAULT. In the event of any breach by you of any agreement with
us, or any default by you in any obligation to us, or should you die or file
a petition in bankruptcy or for the appointment of a receiver by or against
you, or should we for any reason whatsoever deem it necessary for our
protection, we are hereby authorized, at our discretion, to sell any or all
of the securities and other property in any of your accounts which may be in
our possession or control, or which we may be carrying or maintaining for you
(either individually or jointly with others), or to buy-in any securities or
other property of which your account or accounts may be short, or to cancel
any other standing orders, to close out your account or accounts in whole or
in part or in order to close out any commitment made on your behalf. Any such
sale, purchase or cancellation may be made according to our judgment and may
be made, at our discretion, on the exchange or other market where such
business is then usually transacted, or at public auction or at private sale,
without advertising the same and without notice to you or to your personal
representative, and without prior tender, demand or call of any kind upon
you, or upon your personal representative (each of which is expressly waived
by you), and we may purchase the whole or any part thereof free from any
right of redemption, and you shall remain liable for any deficiency; it being
understood that a prior tender, demand, call or notice of any kind shall not
be considered a waiver of our right to sell or buy any securities and/or
other property held by us, or owed us by you, at any time as hereinbefore
provided. Nothing in this agreement shall be construed as relieving you of
any obligations imposed by law.
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5. FINALITY OF REPORTS. Reports of execution of orders and statements of your
accounts shall become conclusive if not objected to in writing, the former
within five days, and the latter within ten days, after forwarding by us to
you by mail or otherwise.
6. RECEIPT OF TRUTH-IN-LENDING. You hereby acknowledge receipt and review of
NationsBanc Montgomery Securities LLC's Truth-In-Lending disclosure statement
contained here within. You understand that interest will be charged on any
debit balances in accordance with the methods described in that statement or
in any amendment or revision thereto which may be provided to you. It is
understood and agreed that the interest charge made to your account at the
close of one charge period will be compounded, unless paid; that is, the
unpaid interest charge for previous periods will be added to the opening
balance for the next charge period, thereby becoming part of the principal
amount due and bearing like interest.
7. TRANSFERS BETWEEN ACCOUNTS. At any time and from time to time, at our
discretion, we may without notice to you apply and/or transfer any or all
securities and/or other property of yours interchangeably between any of your
accounts.
8. SELL ORDERS. It is understood and agreed that you will designate any sell
order for a short account which you place with us as a "short sale" and
hereby authorize us to mark such order as being "short," and when placing
with us any order for a long account, will designate it as such and hereby
authorize us to mark such order as being "long." Any sell order which you
shall designate as being for long account as above provided is for securities
then owned by you and, if such securities are not then deliverable by us from
any of your accounts, the placing of such order shall constitute a
representation by you that it is impracticable for you to then deliver such
securities to us but that you will deliver them as soon as it is possible for
you to do so without undue inconvenience or expense.
9. AGE, BENEFICIAL INTEREST. If you are an individual, you represent that you
are of full legal age, and, in any event not less than eighteen years of age.
You further represent that no one except you has an interest in your account
with us.
10. OPERATIONAL MATTERS. NationsBanc Montgomery Securities LLC primarily uses
banks located in California and New York to issue checks. Also, when we hold
securities for your account, dividends and interest are credited on or about
the payable date as received. Most of our customers prefer to have these
funds held in their accounts, and this will be the procedure which we will
follow with your account unless you advise us of an alternative procedure
which you would prefer. For example, we could arrange for checks to be sent
to you monthly. If you require special arrangements, please bring the matter
to our attention. NationsBanc Montgomery Securities LLC's policy is not to
receive remuneration for directing orders to particular brokers/ dealers or
market centers for execution. Notwithstanding this policy, should NationsBanc
Montgomery Securities LLC receive such remuneration on any transaction,
appropriate disclosure will be made.
11. CREDIT REPORT. NationsBanc Montgomery Securities LLC may, in its
discretion, request an investigative consumer report on you as a credit
reference, which report may include information with respect to character,
general reputation, personal characteristics and mode of living. In
accordance with the Fair Credit Reporting Act, a copy of any such report, if
obtained, will be made available to you upon written request.
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12. CLEARANCE ACCOUNTS. If NationsBanc Montgomery Securities LLC carries your
account as clearing broker by arrangement with another broker through whose
courtesy your account has been introduced, then unless NationsBanc Montgomery
Securities LLC receives from you a written notice to the contrary,
NationsBanc Montgomery Securities LLC shall accept from such other broker,
without any inquiry or investigation by us, (i) orders for the purchase and
sale of securities and other property on margin or otherwise, and (ii) any
other instructions concerning said account. You understand NationsBanc
Montgomery Securities LLC shall have no responsibility or liability to you
for any acts or omissions of such other broker, its officers, employees or
agents.
13. WAIVER, ASSIGNMENT AND NOTICES. No term or provision of this Agreement may
be waived or modified unless in writing and signed by the party against whom
such waiver or modification is sought to be enforced. NationsBanc Montgomery
Securities LLC's failure to insist at any time upon strict compliance with
this Agreement or with any of the terms hereunder or any continued course of
such conduct on its part shall in no event constitute or be considered a
waiver by NationsBanc Montgomery Securities LLC of any of its rights or
privileges. This Agreement contains the entire understanding between you and
NationsBanc Montgomery Securities LLC concerning the subject matter of this
Agreement. You may not assign your rights or obligations hereunder without
first obtaining the prior written consent of NationsBanc Montgomery
Securities LLC. Notice or other communications, including margin calls,
delivered or mailed to the address given below shall, until NationsBanc
Montgomery Securities LLC has received notice in writing of a different
address, be deemed to have been personally delivered to you.
14. 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.
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YOU AGREE, AND BY CARRYING AN ACCOUNT FOR YOU, WE AGREE, THAT ALL CONTROVERSIES
WHICH MAY ARISE BETWEEN US CONCERNING 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 IN THE
FORUMS PROVIDED BY THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR THE
BOARD OF GOVERNORS OF THE NEW YORK STOCK EXCHANGE, INC., AS YOU MAY ELECT. IF
YOU DO NOT MAKE SUCH ELECTION BY REGISTERED MAIL ADDRESSED TO NATIONSBANC
MONTGOMERY SECURITIES LLC, 600 MONTGOMERY STREET, SAN FRANCISCO, CA 94111,
ATTENTION: LEGAL DEPARTMENT, AND RECEIVED WITHIN FIVE DAYS AFTER DEMAND BY US
THAT YOU MAKE SUCH ELECTION, THEN NATIONSBANC MONTGOMERY SECURITIES LLC MAY MAKE
SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL
BE FINAL, AND JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED
IN ANY COURT HAVING JURISDICTION THEREOF.
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.
15. NEW YORK LAW TO GOVERN. This Agreement and its enforcement shall be
governed by the laws of the State of New York (without regard to any
principles of conflicts of law) and its provisions shall be continuous; shall
cover individually and collectively all accounts which you may open or reopen
with us, and shall inure to the benefit of our present organization, and any
successor organization, irrespective of any change or changes at any time in
the personnel thereof, for any cause whatsoever, and of the assigns of our
present organization or any successor organization, and shall be binding upon
you, and/or your estate, executors, administrators, heirs and assigns.
16. PARTIAL UNENFORCEABILITY. If any provision herein is or should become
inconsistent with any present or future law, rule or regulation of any
sovereign government or a regulatory body having jurisdiction over the
subject matter of this Agreement or is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule, regulation, order or decision. In all
other respects, this Agreement shall continue and remain in full force and
effect.
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17. LIMIT ORDERS. NationsBanc Montgomery Securities LLC reserves the right to
not accept from customers limit orders in NASDAQ or over-the-counter
securities in which it acts as a market maker.
18. MARGIN IN MARGIN ACCOUNTS (NOT APPLICABLE TO CASH ACCOUNTS). You hereby
agree to maintain such margin in your margin account as NationsBanc
Montgomery Securities LLC may in its discretion require and you agree to pay
forthwith on demand any debit balance owing with respect to any of your
margin accounts, and if not paid this shall be a breach of this Agreement and
NationsBanc Montgomery Securities LLC may take such action as it considers
necessary for its protection in accordance with this Agreement. You
understand that, even if NationsBanc Montgomery Securities LLC has a policy
of giving customers notice of a margin deficiency, NationsBanc Montgomery
Securities LLC is not obligated to request additional margin from you, and
there may be circumstances where NationsBanc Montgomery Securities LLC will
liquidate securities and/or other property in your account without notice to
you. You will be charged interest on your debit balance which if not paid at
the close of an interest period will be added to the opening balance for the
next interest period. Please consult the attached disclosure statement for an
outline of NationsBanc Montgomery Securities LLC's interest policies.
CASH/MARGIN
19. CUSTOMER'S CONSENT TO LOAN OR PLEDGE OF SECURITIES AND OTHER PROPERTY (NOT
APPLICABLE TO CASH ACCOUNTS). You hereby authorize NationsBanc Montgomery
Securities LLC to lend either to itself or to others any securities and other
property held by NationsBanc Montgomery Securities LLC in your margin account
and to carry all such property in its general loans and such property may be
pledged, repledged, hypothecated or rehypothecated, without notice to you,
either separately or in common with other such property for any amounts due
to NationsBanc Montgomery Securities LLC thereon or for a greater sum, and
NationsBanc Montgomery Securities LLC shall have no obligation to retain a
like amount of similar property in its possession and control.
BY SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT THE SECURITIES IN YOUR MARGIN
ACCOUNT MAY BE LOANED TO NATIONSBANC MONTGOMERY SECURITIES LLC OR LOANED OUT TO
OTHERS AND THAT YOU HAVE RECEIVED AND REVIEWED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGES 2-3 AT
PARAGRAPH 14.
IF JOINT ACCOUNT BOTH PARTIES MUST SIGN. Persons signing on behalf of others
please indicate title or capacity in which you have signed.
Financial Institution Partners, L.P.
--------------------------------------------------
(Typed or Printed Name)
By: Hovde Capital, Inc., general partner
By: Richard J. Perry, Jr., Secretary
--------------------------------------------------
(Signature)
/s/ Richard J. Perry, Jr.
--------------------------------------------------
(Signature)
1824 Jefferson Place, N.W.
--------------------------------------------------
(Mailing Address)
Washington DC 20036
---------------------------------------------
(City) (State) (Zip)
2/4/98
---------------------------------------------
(Date)
Acct.
No:____________________________________________
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EXHIBIT G
NationsBanc Montgomery Securities LLC
PRIME BROKER AGREEMENT
In accordance with the requirements set forth in the January 25, 1994 No-Action
Letter of the Division of Market Regulation of the Securities and Exchange
Commission (the "No-Action Letter"), NationsBanc Montgomery Securities LLC
("NMS"), a North Carolina corporation, and each Customer on whose behalf this
agreement has been executed ("Customer"), hereby agree as follows.
1. As of October 3, 1994 or such later date when the No-Action Letter shall
become effective, this Agreement shall apply to all transactions in which
NMS is given up as the prime broker for Customer; i.e. transactions
executed for Customer by one or more executing brokers (each, an "Executing
Broker"), which transactions are submitted to NMS for clearance and
settlement.
2. If Customer is the beneficial owner of an account managed by an Investment
Advisor registered with the Securities and Exchange Commission under the
Investment Advisors Act of 1940 or such other authorized agent, attorney in
fact or third party ("Investment Advisor"), then this Agreement has been
executed on Customer's behalf by such Investment Advisor. Each Customer on
whose behalf this Agreement has been executed is named on Schedule A
hereto, as such Schedule may be modified from time to time. Investment
Advisor represents and warrants that it has on file written authorization
to execute agreements on behalf of each Customer named on Schedule A and
shall indemnify and hold NMS harmless from any claim or claims arising from
Investment Advisor's unauthorized execution of this Agreement on any such
Customer's behalf.
3. All Executing Brokers through whom Customer or Investment Advisor, as the
case may be, is initially authorized to execute prime brokerage
transactions are identified on Schedule B hereto. Prior to entering into a
prime brokerage transaction with an Executing Broker not identified on
Schedule B. Customer or Investment Advisor shall state in a writing sent
via facsimile to NMS that it desires to do so and confirm with NMS that a
prime brokerage agreement has been executed between NMS and such Executing
Broker. Upon execution of a prime brokerage agreement between NMS and such
Executing Broker, Schedule B hereto shall be deemed automatically amended
to include such Executing Broker and, only thereafter, may Customer execute
prime brokerage transactions with such Executing Broker pursuant to this
Agreement.
4. Customer or Investment Advisor, as the case may be, will promptly notify
NMS of each transaction executed by an Executing Broker on Customer's
behalf, no later than the close of business on trade date. At a minimum,
such notice will include the security involved, the number of shares or
units, the price per share or unit, whether the transaction was a long or
short sale or a purchase, the Executing Broker and the Executing Broker's
commission.
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5. On the next business day following trade date, NMS will send to Customer,
or if requested in writing, to Investment Advisor, notification confirming
the details of each transaction executed by Executing Broker on Customer's
behalf, based upon the information provided to NMS by Customer or
Investment Advisor. Such notification will include all information required
for a confirmation pursuant to Rule 10b-10 under the Securities Exchange
Act of 1934 ("Rule 10b-10"), except the capacity of the executing broker,
an average price designation, and, in principal trades, the reported trade
price and the difference between that price and the net price to Customer,
if this information has not been provided to NMS by Customer or Investment
Advisor. In addition, the notification will disclose any transaction-based
charges imposed by NMS and any commission charged by Executing Broker.
6. NMS will settle transactions on Customer's behalf, unless, during the time
permitted for disaffirmations under the agreement then in effect between
NMS and Executing Broker, NMS disaffirms all unsettled transactions of
Customer that NMS determines to disaffirm in good faith and in accordance
with reasonable commercial standards. NMS will promptly send to Customer or
Investment Advisor, as applicable, a notice of cancellation of all
disaffirmed transactions to offset any notifications sent previously. NMS
shall not be responsible for the clearance and settlement of transactions
that it disaffirms. Rather, Customer shall be responsible and liable solely
to Executing Broker(s) for the clearance and settlement of such
transactions.
7. Without limiting the generality of the foregoing, if Customer is the
beneficial owner of an account managed by an Investment Advisor registered
under the Investment Advisor's Act of 1940, NMS, in its sole and absolute
discretion, may elect not to settle prime brokerage transactions on behalf
of Customer if Customer fails to maintain in its account with NMS minimum
net equity of at least $250,000 in cash or securities with a ready market
as defined in Rule 15c3-l(c)(11) under the Securities Exchange Act of 1934.
Otherwise, if Customer is not the beneficial owner of an account managed by
an Investment Advisor registered under the Investment Advisor's Act of
1940, NMS, in its sole and absolute discretion, may elect not to settle
prime brokerage transactions on behalf of Customer if Customer fails to
maintain in its account with NMS minimum net equity of at least $1,000,000
in cash or securities with a ready market as defined in Rule 15c3-l(c)(11)
under the Securities Exchange Act of 1934.
8. Furthermore, in the event net equity in Customer's account with NMS falls
below the minimum amount set forth in the No-Action Letter, Customer shall
have until 12:00 noon of the fifth business day following the date on which
net equity fell below the minimum amount to restore net equity to the level
required in the No-Action Letter. If Customer fails to restore net equity
to the required level, NMS shall notify each Executing Broker, by the same
day's close of business, that NMS is no longer acting as Prime Broker for
Customer. As of the day following such notice, NMS may not accept any prime
brokerage transactions commenced on behalf of Customer.
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9. So long as this Agreement is in effect, NMS will be responsible to ensure
that all transactions which it has affirmed and not subsequently
disaffirmed, and is obligated to clear, are cleared between NMS and
Customer, and accordingly, appear on NMS's books in either a cash or margin
account for Customer and conform to Regulation T promulgated by the Board
of Governors of the Federal Reserve System and applicable self regulatory
organization margin requirements.
10. Customer may instruct, in a writing separate from the prime brokerage
agreement between Customer and Executing Broker, Executing Broker to send
confirmations of transactions, as required by Rule l0b-10, to Customer in
care of NMS. Confirmations received by NMS on Customer's behalf are
available to Customer without charge, promptly upon request. The parties
acknowledge that providing such an instruction is not a condition to
entering into this Agreement, nor shall Customer be charged differential
fees or otherwise receive incentives for providing such an instruction.
11. NMS is hereby authorized to disclose Customer's name and address to each
Executing Broker identified on Schedule B as such Schedule may be modified
from time to time, to enable such Executing Broker to establish on its
books an account for Customer to be used in the event transactions are
disaffirmed by NMS.
12. NMS will issue to Customer a statement of account at least on a quarterly
basis. The statement will include all transactions that occurred during the
statement period and the resultant security positions and money balances.
13. Customer represents and warrants that it is currently in compliance, and
during the term of this Agreement will remain in compliance, with all
applicable requirements of the No-Action Letter, and any supplements or
amendments thereto; including, in particular, the requirement that it
execute an agreement similar to this Agreement with each Executing Broker
at any point in time identified on Schedule B.
14. In the event of an inconsistency between any term or terms of this
Agreement and those of any Cash Account Agreement, Margin Agreement or
Clearing Agreement between the parties, this Agreement shall control to the
extent of such inconsistency.
15. This Agreement may be amended or modified only by NMS upon prior written
notice to Investment Advisor or Customer. Such amendment or modification
shall become effective immediately in the event Customer continues to
accept prime brokerage services from NMS after the date on which such
notice is given.
16. This Agreement may be terminated by either party hereto upon prior written
notice. Any such termination shall not affect Customer's liabilities and
obligations to NMS with respect to transactions executed prior to such
termination.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict of law
principles thereof.
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18. (a) Arbitration is final and binding on the parties.
(b) The parties are waiving their rights to seek remedies in court,
including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different
from court proceedings.
(d) The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modifications
or rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Any controversy between NMS or any of its affiliates or any of its or their
partners, officers, directors or employees on the one hand, and Customer and/or
Investment Advisor on the other hand, arising out of or relating to this
Agreement or the accounts established hereunder, shall be settled by
arbitration, in accordance with the rules then obtaining of The New York Stock
Exchange, Inc. (or such other arbitration panel or board as may be required by
law). Any award of the arbitrators shall be final, and judgment upon the award
rendered may be entered in any court, state or federal, having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement, which is
acknowledged to contain a pre-dispute arbitration clause, to be duly executed
and delivered as of the date set forth below.
Financial Institution Partners, L.P.
------------------------------------
Customer or Investment Advisor Accepted and Agreed to:
NATIONSBANC MONTGOMERY
By: HOVDE CAPITAL, INC., general partner SECURITIES LLC as prime
broker
By: /s/ Richard J. Perry, Jr. By: /s/ Glenn Dailey
------------------------------- -------------------------
Richard J. Perry, Jr., Secretary Senior Managing Director
------------------------------------ -------------------------
Print Name and Title Print Name and Title
Date: 2/4/98 Date: 2/5/98
------------------- --------------------
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38
EXHIBIT H
NationsBanc Montgomery Securities LLC
________________________________
ACCOUNT NUMBER
________________________________
ACCOUNT NAME
PARTNERSHIP AGREEMENT
Ladies and Gentlemen:
In consideration of your opening and carrying a partnership account in the name
of Financial Institution Partners, L.P. a duly organized partnership (the
"Partnership") of which each of the undersigned is a general partner, the
undersigned jointly and severally agree that each of the following persons, to
wit:
Eric D. Hovde Steven D. Hovde
---------------------- ---------------------
Richard J. Perry, Jr. Braddock J. LaGrua
---------------------- ---------------------
are hereby appointed the authorized agents and attorneys-in-fact of the
Partnership (the "Authorized Agents"), and shall have authority on behalf of the
Partnership, and for its account and risk, to buy, sell (including short sales),
tender, convert, exchange, trade and otherwise deal in, through you as brokers,
stocks, bonds, options and any other securities (on margin or otherwise) in
accordance with your terms and conditions for the Partnership account.
You are authorized to follow the instructions of the Authorized Agents in every
respect concerning said account, and to deliver to them on behalf of the
Partnership account all demands, notices, confirmations, reports, statements of
accounts, and communications of every kind; to deliver to them on behalf of the
Partnership account money, securities and property of every kind, and to follow
the orders of said Authorized Agents regarding the same. The Authorized Agents
are hereby authorized to execute and deliver on behalf of the Partnership
account agreements relating to any of the foregoing matters and to terminate or
modify same or waive any of the provisions thereof; and generally to deal with
you on behalf of the Partnership account as fully and completely as if each
alone were interested in said accounts, all without notice to the other or
others interested in said account.
This Authorization and indemnity is in addition to, and in no way limits or
restricts, any rights which you have under any other agreement or agreements
between you and the undersigned, or any of them, now existing or hereafter
entered into, and is binding on the Partnership and its legal representatives,
successors and assigns. This authorization and indemnity is also a continuing
one and shall remain in full force and effect until revoked by a written notice,
addressed to you and delivered to you at your principal office in San Francisco.
No such revocation shall affect any liability arising out of any transaction
initiated prior to such revocation. The undersigned, jointly and severally agree
to indemnify and hold you harmless from and to pay you promptly on demand any
debit balance in said account, including any loss or debit balance resulting
from transactions initiated prior to receipt of such revocation.
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The undersigned hereby certify that the general and/or limited partners of said
Partnership are as follows: *
Name N/A Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
*or attach signature page(s) of partnership
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
Name Occupation
---------------------------- -----------------------------
The undersigned further authorizes you, in the event of death or retirement of
any of the general and/or limited partners of said Partnership, to take such
proceedings, require such papers, retain such portions or restrict transactions
in said account as you may deem advisable to protect you against any liability,
penalty or loss under any present or future laws or otherwise. It is further
agreed that in the event of the death or retirement of any member of the said
Partnership the remaining members will immediately cause you to be notified of
such fact.
This Authorization and indemnity and its enforcement shall be governed by the
laws of the State of New York, shall cover individually and collectively all
accounts covered by this agreement and authorization which the undersigned may
open or reopen with you, and shall inure to the benefit of your present
organization, and any successor organization, irrespective of any change or
changes of any kind of the personnel thereof for any cause whatsoever, and of
the assigns of your present organization or any successor organization.
Customer consent to loan or pledge of securities and other property (not
applicable to cash accounts): each of the undersigned has signed the enclosed
Customer's Agreement and Customer's Loan Consent which are intended to cover, in
addition to the provisions hereof, the terms upon which the Partnership is to be
carried.
Very truly yours,
HOVDE CAPITAL, INC.
Dated: 2/4/98 By: /s/ Richard J. Perry, Jr.
--------------- ----------------------------------
General Partner(s)
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