-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, bQd0zs/gATF4knImnQ6HbHI3M3zoRtTRq7Gzm/YogJR1jhiOpJKbHUVh/uVWWu6g yov0+yZ/P4vpOn02R1uAkQ== 0000889812-95-000238.txt : 19950531 0000889812-95-000238.hdr.sgml : 19950531 ACCESSION NUMBER: 0000889812-95-000238 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19950526 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MARIETTA CORP CENTRAL INDEX KEY: 0000792969 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 161074992 STATE OF INCORPORATION: NY FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38479 FILM NUMBER: 95542513 BUSINESS ADDRESS: STREET 1: 37 HUNTINGTON ST CITY: CORTLAND STATE: NY ZIP: 13045 BUSINESS PHONE: 6077536746 MAIL ADDRESS: STREET 1: 37 HUNTINGTON STREET CITY: CORTLAND STATE: NY ZIP: 13045 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FLORESCUE BARRY W CENTRAL INDEX KEY: 0000931063 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 701 SOUTHEAST 6TH AVE STREET 2: STE 204 CITY: DELRAY BEACH STATE: FL ZIP: 33483 BUSINESS PHONE: 4072727746 SC 13D/A 1 AMENDMENT NO. 4 TO SCHEDULE 13D OMB APPROVAL OMB Number 3235-0145 Expires: October 31, 1994 Estimated average burden hours per form ......14.90 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4)* MARIETTA CORPORATION (Name of Issuer) COMMON STOCK, $.01 PAR VALUE (Title of Class of Securities) 567634100 (CUSIP Number) Barry Florescue Charles I. Weissman 701 Southeast 6th Avenue, Suite 204 Shereff, Friedman, Hoffman & Goodman , LLP Delray Beach, Florida 33483 919 Third Avenue (407) 272-7746 New York, New York 10022 (212) 758-9500 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 18, 1995 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / / Check the following box if a fee is being paid with the statement / /. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 567634100 Page ____ of ____ Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Barry W. Florescue 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States 7 SOLE VOTING POWER NUMBER OF 314,365 SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 314,365 WITH 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 314,365 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.7% 14 TYPE OF REPORTING PERSON* IN *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION SCHEDULE 13D CUSIP No. 567634100 Page____ of ____ Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 286 Bridge Street, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Colorado 7 SOLE VOTING POWER NUMBER OF 129,900 SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 129,900 WITH 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 129,900 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.6% 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION SCHEDULE 13D CUSIP No. 567634100 Page ____ of ____ Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Florescue Family Corporation 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Nevada 7 SOLE VOTING POWER NUMBER OF 161,965 SHARES BENEFICIALLY 8 SHARED VOTING POWER OWNED BY -0- EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 161,965 WITH 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 161,965 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.5% 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION Schedule 13D Amendment No. 4 Marietta Corporation This Amendment No. 4 to the statement on Schedule 13D (as defined below) restates, amends and supplements the statement on Schedule 13D dated September 26, 1994, as amended by Amendment No. 1 thereto dated November 2, 1994, Amendment No. 2 thereto dated January 20, 1995, Amendment No. 3 thereto dated March 7, 1995 (together, the "Schedule 13D") by Barry W. Florescue, 286 Bridge Street, Inc. ("286 Bridge Street") and Florescue Family Corporation ("FFC", and collectively with Mr. Florescue and 286 Bridge Street, the "Reporting Persons"), relating to the Common Stock (as defined below) of Marietta Corporation. Item 1 Security and Issuer This statement on Schedule 13D relates to the common stock, $.01 par value per share (the "Common Stock"), of Marietta Corporation (the "Issuer"), having its principal executive office at 3700 Huntington Street, Cortland, New York 13045. Item 2 Identity and Background (a) This Schedule 13D is being filed jointly for Barry W. Florescue, 286 Bridge Street, Inc. ("286 Bridge Street") and Florescue Family Corporation ("FFC", and collectively with Mr. Florescue and 286 Bridge Street, the "Reporting Persons"). (b) The principal address and/or office of each of the Reporting Persons is 701 Southeast Sixth Avenue, Delray Beach, Florida 33483. (c) and (f). Mr. Florescue's principal employment is as the Chief Executive Officer of Century Financial Group, Inc. The principal office of Century Financial Group, Inc. is 701 Southeast Sixth Avenue, Delray Beach, Florida 33483. Mr. Florescue is a United States citizen. 286 Bridge Street is a Colorado corporation. The principal business of 286 Bridge Street is investing in real estate and other assets. Mr. Florescue is the President of 286 Bridge Street and is the majority stockholder of 286 Bridge Street. FFC is a Nevada corporation. The principal business of FFC is investing in securities and other assets. Mr. Florescue is the President of FFC and is the majority stockholder of FFC. (d) and (e). During the past five years, none of the Reporting Persons has been convicted in any 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, prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3 Source and Amount of Funds Item 3 of the Schedule 13D is hereby amended to read in its entirety as follows: The source of the funds used by Mr. Florescue to purchase the securities of the Issuer was personal funds. The source of the funds used by 286 Bridge Street to purchase the securities of the Issuer was the assets of the corporation, including the proceeds of unsecured stockholder loans. The source of the funds used by FFC to purchase the securities of the Issuer was the assets of the corporation, including the proceeds of unsecured stockholder loans. The amount of funds used by the Reporting Persons to purchase the 314,165 shares of Common Stock owned by them is as follows: Mr. Florescue $ 178,164.69 286 Bridge Street $1,093,465.29 FFC $1,350,111.76 The Reporting Persons acquired an aggregate of 291,865 of such shares for an aggregate purchase price of $2,443,585.55 of which an aggregate of $1,221,792.78 was provided by customary margin loans. Mr. Florescue purchased the shares he owns directly through Wolff Investments and Bridge Trading Company. 286 Bridge Street purchased its shares of Common Stock through R.M. Stark & Co. FFC purchased its shares of Common Stock through Adler, Coleman & Co., Inc. (which were transferred to R.M. Stark & Co.), Ladenburg, Thalmann Co. Inc. and Wolff Investments. Item 4 Purpose of the Transaction Item 4 of the Schedule 13D is hereby amended to read in its entirety as follows: Each of the Reporting Persons acquired its respective shares of Common Stock for investment purposes. Each of the Reporting Persons may acquire or dispose of securities of the Issuer, including shares of Common Stock, directly or indirectly, in open-market or privately negotiated transactions, depending upon the evaluation of the performance and prospects of the Issuer by the Reporting Persons, and upon other developments and circumstances, including, but not limited to, general economic and business conditions and stock market conditions. On March 7, 1995 Mr. Florescue, as President of FFC, forwarded a letter to the Board of Directors of the Issuer which is attached hereto as Exhibit E and incorporated herein by reference. On May 18, 1995 Mr. Florescue, as President of FFC, and the Issuer executed a confidentiality agreement which is attached hereto as Exhibit F and incorporated herein by reference. -2- On May 23, 1995 Mr. Florescue, as President of FFC, and Dabney Resnick, Inc. ("D/R") executed a letter attached hereto as Exhibit G and incorporated herein by reference. Except for the foregoing and as disclosed below, no Reporting Person has any present plans or proposals which relate to or would result in any of the actions or events described in paragraphs (a) through (j) of Item 4 of Schedule 13D. Item 5 Interest in Securities of the Issuer Item 5 of the Schedule 13D is hereby amended to read in its entirety as follows: (a) Mr. Florescue is the beneficial owner of 314,365 shares (8.7%) of Common Stock. 286 Bridge Street is the beneficial owner of 129,900 shares (3.6%) of Common Stock. Mr. Florescue, as the President and majority stockholder of 286 Bridge Street, has the power to direct the voting and disposition of the investments of 286 Bridge Street, including the shares of Common Stock, and accordingly, may be deemed the beneficial owner of any shares of Common Stock owned by 286 Bridge Street by virtue of Rule 13d-3 under the Securities Exchange Act of 1934, as amended ("Rule 13d-3"). FFC is the beneficial owner of 161,965 shares (4.5%) of Common Stock. Mr. Florescue, as the President and majority stockholder of FFC, has the power to direct the voting and disposition of the investments of FFC, including the shares of Common Stock, and accordingly, may be deemed the beneficial owner of any shares of Common Stock owned by FFC by virtue of Rule 13d-3. The number of shares of Common Stock beneficially owned by each of the Reporting Persons and the percentage of outstanding shares represented thereby have been computed in accordance with Rule 13d-3. The percentage of shares of Common Stock beneficially owned by the Reporting Persons has been calculated based on 3,596,049 shares of Common Stock reported to be outstanding as of April 28, 1995 in the Issuer's Quarterly Report of Form 10-Q for the quarter ended April 1, 1995. (b) 286 Bridge Street has the sole power (i) to vote or to direct the voting of and (ii) to dispose or to direct the disposition of the 129,900 shares of Common Stock beneficially owned by it. Mr. Florescue, as the President and majority stockholder of 286 Bridge Street, has the power to direct the voting and disposition of the investments of 286 Bridge Street, including the shares of Common Stock. FFC has the sole power (i) to vote or to direct the voting of and (ii) to dispose or to direct the disposition of the 161,965 shares of Common Stock beneficially owned by it. Mr. Florescue, as the President and majority stockholder of FFC, has the power to direct the voting and disposition of the investments of FFC, including the shares of Common Stock. -3- Mr. Florescue has the sole power (i) to vote or to direct the voting of and (ii) to dispose or to direct the disposition of the 314,365 shares of Common Stock beneficially owned by him. Of the 314,365 shares of Common Stock beneficially owned by Mr. Florescue, 22,500 shares of Common Stock are owned by him directly and 129,900 and 161,965 shares of Common Stock, respectively, are owned by 286 Bridge Street and FFC. (c) All transactions in the Common Stock which have been effected by the Reporting Persons during the past sixty days are set forth in Annex A hereto and are incorporated herein by reference. Each of the transactions was effected on the open market. (d) Not applicable. (e) Not applicable. Item 6 Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Except as provided in the letter executed by FFC and D/R on May 23, 1995, which is attached hereto as Exhibit G and incorporated herein by reference, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and between the Reporting Persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, put or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies. Item 7 Material to be Filed as Exhibits Exhibit A. Customer Agreement, dated April 7, 1994, between Ernst & Company and Mr. Florescue. Exhibit B. Customer Account Agreement and Disclosure Document, dated August 8, 1994, between Kemper Clearing Corp. and 286 Bridge Street. Exhibit C. Client Agreement, effective as of August 22, 1992, between Ladenburg, Thalmann & Co. Inc. and FFC. Exhibit D. Customer Agreement, dated January 13, 1993, between Adler, Coleman & Co., Inc. and FFC. Exhibit E. Letter dated March 7, 1995 to the Board of Directors of the Issuer. -4- Exhibit F. Confidentiality Agreement, dated May 17, 1995, between FFC and the Company. Exhibit G. Letter, dated May 22, 1995, between FFC and D/R. -5- Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 25, 1995 /s/ Barry W. Florescue BARRY W. FLORESCUE 286 BRIDGE STREET, INC. By: /s/ Barry W. Florescue Name: Barry W. Florescue Title: President FLORESCUE FAMILY CORPORATION By: /s/ Barry W. Florescue Name: Barry W. Florescue Title: President -6- ANNEX A Number of Price Reporting Person Date of Transaction Shares Acquired per Share - ---------------- ------------------- --------------- --------- 286 Bridge Street 5/12/95 200 11.02 -7- EX-99.A 2 CUSTOMER AGREEMENT, DATED APRIL 7, 1994 EXHIBIT A [LETTERHEAD OF ERNST & COMPANY] CUSTOMER AGREEMENT In consideration for you (the "Broker") opening or maintaining one or more accounts (the "Account") for the undersigned (the "Customer"), the Customer agrees to the terms and conditions contained in this Agreement. The heading of each provision of this Agreement is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in each such provision. For purposes of this Agreement, "securities and other property" means, but is not limited to, money, securities, financial instruments and commodities of every kind and nature and related contracts and options, except that the provisions of paragraph 21 herein (the arbitration clause) shall not apply to commodities accounts. This definition includes securities or other property currently or hereafter held, carried or maintained by you or by any of your affiliates, in your possession or control, or in the possession or control of any such affiliate, for any purpose, in and for any of my accounts now or hereafter opened, including any account in which I may have an interest. 1. Applicable Rules and Regulations All transactions in the Customer's Account shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market, and its clearing house, if any, where the transactions are executed by the Broker or its agents, including its subsidiaries and affiliates. Also, where applicable, the transactions shall be subject (a) to the provisions of (1) the Securities Exchange Act of 1934, as amended, and (2) the Commodities Exchange Act, as amended; and (b) to the rules and regulations of (1) the Securities Exchange Commission, (2) the Board of Governors of the Federal Reserve System and (3) the Commodities Futures Trading Commission. 2. Agreement Contains Entire Understanding/Assignment This Agreement contains the entire understanding between the Customer and the Broker concerning the subject matter of this Agreement. Customer may not assign the rights and obligations hereunder without first obtaining the prior written consent of the Broker. 3. Severability If any provision of this Agreement is held to be invalid, void or unenforceable by reason of any law, rule, administrative order or judicial decision, that determination shall not affect the validity of the remaining provisions of this Agreement. 4. Waiver Except as specifically permitted in this Agreement, no provision of this Agreement can be, nor be deemed to be, waived, altered, modified or amended unless such is agreed to in a writing signed by the Broker. 5. Delivery of Securities Without abrogating any of the Broker's rights under any other portion of this Agreement and subject to any indebtedness of the Customer to the Broker, the Customer is entitled, upon appropriate demand, to receive physical delivery of fully paid securities in the Customer's Account. 6. Liens All securities and other property of the Customer in any account in which the Customer has an interest shall be subject to a lien for the discharge of any and all indebtedness or any other obligation of the Customer to the Broker. All securities and other property of the Customer shall be held by the Broker as security for the payment of any such obligations or indebtedness to the Broker in any account that the Customer may have an interest, and the Broker subject to applicable law may, at any time and without prior notice to the Customer, use and/or transfer any or all securities and other property interchangeably in any account(s) in which the Customer has an interest (except regulated commodity accounts). 7. Pledge of Securities and Other Property Within the limitations imposed by applicable laws, rules and regulations, all securities and other property of the Customer may be pledged and repledged and hypothecated and rehypothecated by the Broker from time to time, without notice to the Customer, either separately or in common with such other securities and other property of other bona fide Customers of the Broker, for any amount due to the Broker in the Customer's Account(s). The Broker may do so without retaining in its possession or under its control for delivery a like amount of similar securities or other property. 8. Interest Debit balances of the Account(s) of the Customer shall be charged with interest in accordance with the Broker's established custom, as disclosed to the Customer pursuant to the provisions of Rule 10b-16 of the Securities Exchange Act. 9. DISCLOSURES REGARDING LIQUIDATIONS AND COVERING POSITIONS THE CUSTOMER SHOULD CLEARLY UNDERSTAND THAT NOTWITHSTANDING A GENERAL POLICY OF GIVING CUSTOMERS NOTICE OF A MARGIN DEFICIENCY, THE BROKER IS NOT OBLIGATED TO REQUEST ADDITIONAL MARGIN FROM THE CUSTOMER IN THE EVENT THE CUSTOMER'S ACCOUNT FALLS BELOW MINIMUM MAINTENANCE REQUIREMENTS. MORE IMPORTANTLY, THERE MAY WELL BE CIRCUMSTANCES WHERE THE BROKER WILL LIQUIDATE SECURITIES AND/OR OTHER PROPERTY IN THE ACCOUNT WITHOUT NOTICE TO THE CUSTOMER TO ENSURE THAT MINIMUM MAINTENANCE REQUIREMENTS ARE SATISFIED. 10. LIQUIDATIONS AND COVERING POSITIONS THE BROKER SHALL HAVE THE RIGHT IN ACCORDANCE WITH ITS GENERAL POLICIES REGARDING MARGIN MAINTENANCE REQUIREMENTS TO REQUIRE ADDITIONAL COLLATERAL OR THE LIQUIDATION OF ANY SECURITIES AND OTHER PROPERTY WHENEVER IN BROKER'S DISCRETION IT CONSIDERS IT NECESSARY FOR ITS PROTECTION INCLUDING IN THE EVENT OF, BUT NOT LIMITED TO: THE FAILURE OF THE CUSTOMER TO PROMPTLY MEET ANY CALL FOR ADDITIONAL COLLATERAL; THE FILING OF A PETITION IN BANKRUPTCY BY OR AGAINST THE CUSTOMER; THE APPOINTMENT OF A RECEIVER IS FILED BY OR AGAINST CUSTOMER; AN ATTACHMENT IS LEVIED AGAINST ANY ACCOUNT OF THE CUSTOMER OR IN WHICH THE CUSTOMER HAS AN INTEREST OR; THE CUSTOMER'S DEATH. IN SUCH EVENT, THE BROKER IS AUTHORIZED TO SELL ANY AND ALL SECURITIES AND OTHER PROPERTY IN ANY ACCOUNT OF THE CUSTOMER WHETHER CARRIED INDIVIDUALLY OR JOINTLY WITH OTHERS, TO BUY ALL SECURITIES OR OTHER PROPERTY WHICH MAY BE SHORT IN SUCH ACCOUNT(S), TO CANCEL ANY OPEN ORDERS AND TO CLOSE ANY OR ALL OUTSTANDING CONTRACTS, ALL WITHOUT DEMAND FOR MARGIN OR ADDITIONAL MARGIN, OTHER NOTICE OF SALE OR PURCHASE, OR OTHER NOTICE OR ADVERTISEMENT EACH OF WHICH IS EXPRESSLY WAIVED BY THE CUSTOMER. ANY SUCH SALES OR PURCHASES MAY BE MADE AT BROKER'S DISCRETION ON ANY EXCHANGE OR OTHER MARKET WHERE SUCH BUSINESS IS USUALLY TRANSACTED OR AT PUBLIC AUCTION OR PRIVATE SALE, AND BROKER MAY BE THE PURCHASER FOR BROKER'S OWN ACCOUNT. IT IS UNDERSTOOD A PRIOR DEMAND, OR CALL, OR PRIOR NOTICE OF THE TIME AND PLACE OF SUCH SALE OR PURCHASE SHALL NOT BE CONSIDERED A WAIVER OF BROKER'S RIGHT TO SELL OR BUY WITHOUT DEMAND OR NOTICE AS HEREIN PROVIDED. 11. Margin The Customer agrees to maintain in all accounts with the Broker such positions and margins as required by all applicable statutes, rules, regulations, procedures and custom, or as the Broker deems necessary or advisable. The Customer agrees to promptly satisfy all margin and maintenance calls. 12. Satisfaction of Indebtedness The Customer agrees to satisfy, upon demand, any indebtedness, and to pay any debit balance remaining when the Customer's Account is closed, either partially or totally. Customer Account(s) may not be closed without Broker first receiving all securities and other property for which the Account is short and all funds to pay in full for all securities and other property in which the Account(s) are long. 13. Transactions and Settlements All orders for the purchase or sale of securities and other property will be authorized by the Customer and executed with the understanding that an actual purchase or sale is intended and that it is the Customer's intention and obligation in every case to deliver certificates or commodities to cover any and all sales or to receive and pay for certificates or commodities upon the Broker's demand. If the Broker makes a short sale of any securities and other property at the Customer's direction or if the Customer fails to deliver to the Broker any securities and other property that the Broker has sold at the Customer's direction, the Broker is authorized to borrow the securities and other property necessary to enable the Broker to make delivery and the Customer agrees to be responsible for any cost or loss the Broker may incur, or the cost of obtaining the securities and other property if the Broker is unable to borrow it. The Broker is the Customer's agent to complete all such transactions and is authorized to make advances and expend monies as are required. 14. Sales by Customer The Customer understands and agrees any order to sell "short" will be designated as such by the Customer, and that the Broker will mark the order as "short". All other sell orders will be for securities owned ("long") at that time; by the Customer by placing the order the Customer affirms that he will deliver the securities on or before the settlement date. 15. Broker as Agent The Customer understands that the Broker is acting as the Customer's agent, unless the Broker notifies the Customer, in writing before the settlement date for the transaction, that the Broker is acting as a dealer for its own account or as agent for some other person. 16. Confirmations and Statements Confirmations of transactions and statements for the Customer's Account(s) shall be binding upon the Customer if the Customer does not object in writing, within ten days after receipt by the Customer. Notice or other communications including margin and maintenance calls delivered or mailed to the address given below shall, until the Broker has received notice in writing of a different address, be deemed to have been personally delivered to the Customer whether actually received or not. 17. SUCCESSORS Customer hereby agrees that this Agreement and all the terms thereof shall be binding upon Customer's heirs, executors, administrators, personal representatives and assigns. This agreement shall enure to the benefit of the Broker's present organization, and any successor organization, irrespective of any change or changes at any time in the personnel thereof, for any cause whatsoever. 18. CHOICE OF LAWS THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 19. Capacity to Contract, Customer Affiliation By signing below, the Customer represents that he/she is of legal age, and that he/she is not an employee of any exchange, or of any corporation of which any exchange owns a majority of the capital stock, or of a member of any exchange, or of a member firm or member corporation registered on any exchange, or of a bank, trust company, insurance company or of any corporation, firm or individual engaged in the business of dealing, either as broker or as principal, in securities, bills of exchange, acceptances or other forms of commercial paper, and that the Customer will promptly notify the Broker in writing if the Customer is now or becomes so employed. The Customer also represents that no one except the Customer has an interest in the account or accounts of the Customer with you. 20. ARBITRATION DISCLOSURES o ARBITRATION IS FINAL AND BINDING ON THE PARTIES. o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. o 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. o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY. 21. ARBITRATION THE CUSTOMER AGREES, AND BY CARRYING AN ACCOUNT FOR THE CUSTOMER THE BROKER AGREES, 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 PERTAINING TO SECURITIES AND OTHER PROPERTY, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE STATE DESIGNATED IN PARAGRAPH 18, BEFORE THE AMERICAN ARBITRATION ASSOCIATION, OR BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR AN ARBITRATION FACILITY PROVIDED BY ANY OTHER EXCHANGE OF WHICH THE BROKER IS A MEMBER, OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR THE MUNICIPAL SECURITIES RULEMAKING BOARD AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION. THE CUSTOMER MAY ELECT IN THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE BY THE AMERICAN ARBITRATION ASSOCIATION, OR BY AN EXCHANGE OR SELF-REGULATORY ORGANIZATION OF WHICH THE BROKER IS A MEMBER, BUT IF THE CUSTOMER FAILS TO MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO THE BROKER AT THE BROKER'S MAIN OFFICE, BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM THE BROKER TO MAKE SUCH ELECTION, THEN THE BROKER MAY MAKE SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION. 22. LOAN OR PLEDGE OF SECURITIES THE CUSTOMER HEREBY AUTHORIZES THE BROKER TO LEND EITHER TO ITSELF OR TO OTHERS ANY SECURITIES HELD BY THE BROKER IN THE CUSTOMER'S MARGIN ACCOUNT AND TO CARRY SUCH PROPERTY IN ITS GENERAL LOANS. SUCH PROPERTY MAY BE PLEDGED, REPLEDGED, HYPOTHECATED OR REHYPOTHECATED EITHER SEPARATELY OR IN COMMON WITH OTHER SUCH PROPERTY FOR ANY AMOUNTS DUE TO THE BROKER THEREON OR FOR A GREATER SUM, AND THE BROKER SHALL HAVE NO OBLIGATION TO RETAIN A LIKE AMOUNT OF SIMILAR PROPERTY IN ITS POSSESSION AND CONTROL. BY SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT: 1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE LOANED TO THE BROKER OR LOANED OUT TO OTHERS, AND 2. THAT THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGE 3 AT PARAGRAPH 21. 4/7/94 /s/ Barry Florescue _________________________ ______________________________ Date Customer signature _________________________ ______________________________ Date Joint owner signature EX-99.B 3 CUSTOMER ACCOUNT AGREEMENT AND DISCLOSURE DOCUMENT EXHIBIT B KEMPER CLEARING CORP. CUSTOMER ACCOUNT AGREEMENT and DISCLOSURE DOCUMENT DESIGNATION OF RESPONSIBILITIES (NYSE RULE 382 DISCLOSURE) Kemper Clearing Corp. (KCC) and your Broker have allocated between us several functions and responsibilities with respect to your account. Specifically: 1. Your Broker shall be solely responsible for opening, approving and monitoring your account. This means that among other things, your Broker (and not KCC) is solely responsible for: a. Receiving and reviewing any financial or personal information about you and your investment objectives; b. Determining if a specific investment strategy is suitable or appropriate for you; c. Supervising the volume of activity, or any other matter regarding the quantity, quality or specifics of any securities or options transaction in your account; d. Making recommendations regarding a specific security or investment strategy; e. Providing you with research or market interpretations regarding the advisability of purchasing or selling a specific security (although your Broker may receive materials from KCC that discuss in general the condition of a specific company or industry group and that may be used by your Broker in making specific recommendations to you); f. If you have an options account or engage in transactions in listed securities options: i. delivering a current Options Clearing Corporation (OCC) brochure - - "Characteristics and Risks of Standardized Options" - to you prior to your first options trade and delivering to you periodic updated versions of this brochure as they are published by the OCC; ii. determining which options strategies are suitable for you; iii. notifying you when you have been assigned delivery responsibility on a short options position; iv. accepting exercise notices from you for long options positions in your account. 2. KCC will be responsible for extending credit to you for transactions involving margin or otherwise effected through your KCC account. Your Broker, however, is responsible for communicating all information to you regarding margin and credit, including communicating and processing margin calls. KCC may, nevertheless, contact you as well with respect to margin deficiencies in your account(s). 3. KCC shall maintain books and records relating to the settlement and clearing of cash and securities transactions in your KCC account. To the extent KCC provides execution services for your Broker (see paragraph 6. below) it will maintain records relating to execution. All other books and records including information regarding your personal financial information and investment objectives, records relating to orders to purchase or sell securities and communications between you and your Broker, including correspondence and documents relating to advertising and promotion will be maintained solely by your Broker. 4. KCC shall be responsible for holding and safekeeping your money, funds and securities. You may deliver money and securities to KCC or your Broker for deposit to your KCC account provided, however, that KCC shall only be responsible for holding and safekeeping your money, funds and securities from the time they are actually received by KCC from you or your Broker. 5. KCC is responsible for providing you with written confirmation of each transaction entered for your account. KCC is also responsible for providing you with at least a quarterly summary of the status of your KCC account that will list your securities and cash positions, margin debt and open options positions, if applicable. 6. Your Broker is solely responsible for accepting orders from you to buy, sell, margin, tender, or exchange securities for settlement in your KCC account. Your Broker is also responsible for execution of those orders on the applicable exchange or market. Your Broker may request that KCC assist with the execution of orders settled in your KCC account. IN THOSE CASES WHERE KCC ASSISTS YOUR BROKER WITH EXECUTION, KCC IS ACTING ON BEHALF OF YOUR BROKER ONLY AND NOT DIRECTLY FOR YOU. KCC may rely on any order or instruction it receives from your Broker without further inquiry, and orders for your account may only be entered by and through your Broker. 7. In addition, as part of its clearing and settlement services, KCC will (a) collect from or pay to third parties money due to or from you for securities transactions in your KCC account; (b) receive from third parties or deliver to third parties securities purchased or sold, as the case may be; (c) collect and pay to you dividends or interest due on securities held in your KCC account in KCC's name ("street registration") and charge your KCC account for interest or dividends improperly credited to your account; (d) on your instruction, process exchange, rights and tender offers with respect to securities in your KCC account and (e) in the case of an account which trades in listed securities options, allocate assignment or exercise notices or execute notices to exercise, as the case may be. We appreciate the opportunity to be of service. Your Broker should be able to answer any questions you may have respecting your accounts. If, however, you have questions concerning those areas for which KCC is responsible, which your Broker cannot answer, please feel free to contact KCC at the following address: Kemper Clearing Corp. Attention: Correspondent Services PO Box 2034 Milwaukee, Wisconsin 53201-9450 CUSTOMER AGREEMENT THIS AGREEMENT sets forth the terms and conditions under which Kemper Clearing Corp. (KCC), its subsidiaries affiliates, agents and its and their successors and assigns will maintain your account for purchases and sales of securities and other property. Your signature on the attached signature page will constitute your acceptance of and agreement to these terms and conditions. 8. Clearance Accounts You acknowledge that KCC is carrying your account as clearing broker by arrangement with another Broker and through whose courtesy your account has been introduced. The accompanying letter (NYSE Rule 382 Disclosure, set forth in paragraphs 1 through 7 above), which is incorporated herein by reference, sets out the duties, responsibilities and obligations of KCC and your Broker with regard to your account. By signing this Agreement, you acknowledge that you have read this letter and understand the limited duties, responsibilities and obligations which KCC owes to you. Moreover, KCC neither overseas nor supervises the activities of your Broker. KCC may, under certain circumstances, provide execution services for your broker, which services may include execution of orders for your account. Unless KCC receives a written notice from you to the contrary, KCC shall accept from such Broker, without any inquiry or investigation by it (i) orders for the purchase or sale in your account of securities and other property on margin or otherwise, to the extent KCC provides execution services to your Broker, and (ii) any other instructions concerning your account. You acknowledge and agree that KCC shall not be responsible to you for any loss resulting from the conduct (including but not limited to errors, omissions and negligence) on the part of any third party, including your Broker who introduced your account to KCC. You specifically agree that KCC shall have no obligation or duty to supervise the activities of any such third party, including your Broker, and you agree to indemnify and hold KCC harmless from and against all losses, liabilities and damages, including attorney's fees, incurred by KCC as a result of any actions taken or not taken by your Broker and such third parties. 9. Applicable Law and Regulations All transactions in your account shall be subject to all applicable laws and the rules and regulations in effect now and as amended from time to time of all federal, state and self-regulatory agencies, including but not limited to the Board of Governors of the Federal Reserve System and the constitution, rules and customs of the exchange of market (and its clearing house) where executed. 10. Security Interest and Lien You hereby acknowledge that it is your intention and obligation and you hereby agree upon KCC's demand to deliver certificates, commodities or other property to cover all of your sales in your account and, in the case of purchases, to pay for securities, commodities or other property in accordance with this agreement and all applicable laws. You agree that KCC shall have a continuing security interest in all your property, including but not limited to securities, commodity futures contracts, options, commercial paper, monies, and any after-acquired property held by it for any purpose including safekeeping or carried in your account, as security for the payment of all of your obligations and liabilities to KCC. In the event of a breach or default under this Agreement, KCC shall have all rights and remedies available to a secured creditor under the Uniform Commercial Code of Wisconsin as then in effect in addition to the rights and remedies provided herein or otherwise by law. 11. Deposits on Cash Transactions If at any time KCC considers it necessary for its protection it may in its discretion or in accordance with applicable laws require you to deposit cash or collateral in your account to assure due performance by you of your open contractual commitments or in accordance with applicable laws or your other obligations to KCC, however created. 12. Breach, Bankruptcy or Default Any breach of this Agreement or the filing of a petition in bankruptcy or for the appointment of a receiver by or against you or the levy of an attachment against your account(s) with KCC, or your death, mental incompetency or dissolution, shall constitute, at KCC's election, a default by you under all other agreements KCC may then have with you (whether heretofore or hereafter entered into) for the purchase from you or sale to you of any property or any other type of transaction. KCC reserves the right to sell any and all property in your account(s) with it (either individually or jointly with others), to buy any or all property that may be short in such accounts and/or to cancel all outstanding transactions and/or orders and to offset any indebtedness in your account against any other account you may have (either individually or jointly with others), and you shall be liable to KCC for any loss and/or costs substained, together with interest thereon at the maximum interest permitted under the laws of the State of Wisconsin, computed daily on the basis of a 360-day year. Any such purchases and/or sales may be public or private and may be made without notice or advertisement and in such manner as KCC may in its discretion determine. At any such sale or purchase, KCC may purchase or sell the property free of any right of redemption. 13. Binding Effect You hereby agree that this Agreement and all the terms thereof shall be binding upon your heirs, executors, administrators, personal representatives, successors and assigns, as the case may be. 14. Finality of Reports Reports of the execution of an order and trade confirmations, to the extent provided by KCC, and Statements of your account shall be conclusive if not objected to in writing within five days and ten days, respectively, after transmittal to you by mail or otherwise. Written objections under this paragraph 14 shall be sent directly to: Kemper Clearing Corp. PO Box 2034 Milwaukee, Winconsin 53201-9450 15. Costs of Collection In the event that KCC has to employ counsel or a collection agency to collect any debit balance you owe, you hereby authorize KCC to charge you for the reasonable costs of collection, including but not limited to attorney's fees, court costs and expenses whatsoever in nature incurred by it in effecting said collection. 16. Impartial Lottery Allocation You agree, that in the event KCC holds on your behalf bonds or preferred stock in street or bearer form that are callable in part, you will participate in the impartial lottery allocation system of the called securities in accordance with the rules of the New York Stock Exchange, Inc. Further, you understand when the call is favorable, no allocation will be made to any account in which KCC, its officers, directors or employees have financial interest until all other customers are satisfied on an impartial lottery basis. 17. 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. For any such waiver or modification to be binding on KCC, it must be signed by an officer of KCC, who is authorized to act on its behalf. KCC'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 KCC of any of its rights or privileges. This Agreement contains the entire understanding between you and KCC concerning the subject matter of this Agreement. You may not assign your rights and obligations hereunder without first obtaining the prior written consent of KCC. Notice or other communications delivered or mailed to the address given below shall, until KCC has received notice in writing of a different address, be deemed to have been personally delivered to you. 18. Wisconsin Law to Govern This Agreement shall be deemed to have been made in the State of Wisconsin and shall be construed, and the rights and liabilities of the parties determined, in accordance with the laws of the State of Wisconsin (except for Wisconsin's choice of law rules, which are superseded by this paragraph). 19. Limitation of Action No suit, arbitration, proceeding, claim or action arising out of or relating to this Agreement may be maintained by either you or KCC unless it shall be commenced within one (1) year after the first occurrence of the event upon which the claim or cause of action is based. 20. Venue and Jurisdiction All actions or proceedings arising directly, indirectly or otherwise in connection with, out of, in relation to, or from this Agreement or any transaction covered hereby, if pursued through the federal or state court system, shall be commenced and maintained only in courts located in the City of Milwaukee, State of Wisconsin. You specifically consent and submit to the jurisdiction of any such court and appoint any entity as KCC may appoint from time to time to be your lawful attorney-in-fact and duly authorized agent for service of lawful process. You agree that service of such process upon your agent as designated herein shall constitute personal service upon you; provided, however, that your agent shall, within five (5) days after receipt of such summons, forward to you the summons together with all papaers affixed thereto by certified or registered mail, at the address set forth below. In the event you commence, initiate or demand any non-judicial proceeding, including but not limited to arbitration, with respect to any matter arising directly, indirectly or otherwise in connection with, out of, in relation to, or from this Agreement, then the situs of any hearing held in connection with such proceeding or arbitration shall only be at such location within the City of Chicago, State of Illinois, as KCC shall designate, and no other place. You specifically waive the right to contest or change the venue of any proceeding, or the jurisdiction of any court or tribunal as designated in this paragraph 20. 21. Partial Unenforceability If any provisions herein are or should become inconsistent with any present or future law, rule or regulation of any sovereign government or a regulatory body having jurisdiction over the subject matter of this Agreement, such provision shall be deemed to be rescinded or modified in accordance with any such law, rule or regulation. In all other respects, this Agreement shall continue and remain in full force and effect. MONEY MARKET FUNDS KCC may provide to your Broker the ability to offer to you a no-load money market mutual fund (the Fund). If such Fund is made available to you by your Broker, you hereby agree that the following terms and conditions will govern your participation in the Fund. 22. Upon your receipt of the prospectus for the Fund you choose, your securities account will be linked to the Fund. You must have in your securities account a free credit cash balance of at least $1,000 (in excess of any unsettled transactions). The initial investment of $1,000 or more, and subsequent free credit cash balances resulting from securities sales, additional cash deposits on normal settlement days and, if requested, interest or dividends, (that is, any cash that may be transfered out of your account without resulting in interest charges) will automatically be invested in shares of the Fund at their current net asset value at least once a week (automatic purchase order). 23. The purchase price for shares of the Fund will be the net asset value per share next determined after the Fund's receipt of the automatic purchase order. Shares of the Fund will automatically be redeemed at net asset value to satisfy debit balances in your various accounts. KCC reserves the right to redeem all Fund shares should the value of your Fund shares held in your account go below $500.00. 24. Option requirements as well as commodity requirements may be considered as debit balances for automatic redemption purposes. Short account available funds will be those in excess of $2,000 above the normal requirements of the account. Liquidations for the short account will be made only when the $2,000 reserve is used up. The liquidation will be sufficient to build the reserve back to a minimum of $2,000. This procedure is to eliminate the need for small liquidations at frequent intervals as the short is marked to the market. At any time, you may request liquidation of Fund shares from your account by notifying your Account Executive (minimum liquidation is $100.00). 25. Dividends will be declared each day on shares of the Fund owned by you and will be reinvested once each month in additional Fund shares unless requested by you to be paid out in cash. Under certain circumstances a monthly fee is charged on customer balances in the Fund. The fee will be equal to 0.15% per year or 12.5 cents per $1,000 per month for taxable funds; 0.075% or 6.25 cents per $1,000 per month for tax exempt funds. The fee will be deducted automatically from monthly income in the form of a 0.15% (15 basis points) reduction in yield for taxable funds; 0.075% (7 1/2 basis points) for tax exempt funds. The maximum annual fee for any account is $150.00. For tax exempt funds, the maximum annual fee is $75.00. 26. Your Customer Statement will detail transactions in the Fund, distributions of additional shares reflecting the current month's earnings and Redemption checks during the preceding month. This Statement will be provided at least quarterly. Neither the Fund nor KCC will send out confirmations on each occasion that shares of the Fund are either bought or redeemed through your account, but the Statement will describe the transactions in the Fund that took place during the preceding month. You understand that the Statement should be carefully reviewed by you. 27. You may terminate your money market fund account at any time by notifying KCC in writing, but you will remain responsible for any charges to your account whether arising before or after termination. You also understand that KCC may terminate your money market fund account at any time. MARGIN AND OPTION ACCOUNTS 28. Margin in Margin Account You hereby agree to maintain such margins in your margin account as KCC may in its discretion require from time to time and you agree to pay forthwith on demand any debit balance owing with respect to any of your margin accounts. If there is a decline in the market value of your securities, KCC may require that you deposit additional collateral in order to maintain the margin in your account or accounts. Any failure by you to maintain any margin required by KCC or to pay any debit balance due shall be a breach of this Agreement and KCC may take such action as it considers necessary for its protection in accordance with this Agreement. Margin calls and related correspondence will generally be communicated by your Broker although KCC may, in its discretion, contact you directly with respect to such matters. Margin calls can be satisfied by the deposit of additional securities and/or cash. You will be charged interest on your debit balance at a rate that will be based on the broker call money rate then in effect which, if not paid at the close of an interest period, will be added to the opening balance for the next period. The actual formula to compute the amount of interest charged against your account from time to time is set forth in the "Truth in Lending" statement enclosed herein. The broker call money rate shall be based on published rates for call money lent to brokers on stock exchange collateral or broker call money rates as quoted by commercial banks, as determined by KCC. Margin interest shall be computed daily on the basis of your closing margin balance utilizing a 360-day year. The rate of interest to be charged may vary from time to time based on fluctuations in the broker call money rate charged to KCC, as well as the size of your debit balance and other factors (see paragraph 35). KCC reserves the right to change the rate of interest to be charged for margin transactions in your account without prior notice to you and you expressly waive any requirement of such prior notice. 29. Customer's Consent to Loan or Pledge of Securities You hereby agree that all securities and commodities or any other property now or hereafter held by KCC or carried by KCC for you (either individually or jointly with others), or deposited to secure the same may from time to time and without notice to you, be carried in KCC's general loans and may be pledged, repledged, hypothecated or re-hypothecated separately or in common with other securities and commodities or for any other property, for the sum due to KCC thereon or, subject to Applicable Laws, for a greater sum and without retaining in KCC's possession and control for delivery a like amount of similar securitiesw or commodities. 30. Acknowledgement of Receipt of OCC Disclosure Brochure By placing an order to buy or sell listed securities options that will be executed or cleared and settled through your KCC account, you represent to KCC that you have already received the OCC brochure Characteristics and Risks of Standardized Options and you acknowledge that KCC is relying on this representation in accepting your options order for execution, settlement or clearing, as the case may be. 31. Position or Exercise Limits You agree that you will not, either acting alone or in concert with others, violate the position or exercise limits as promulgated from time to time by any exchanges on which transactions on your behalf are executed, (the "Exchange") and any applicable self-regulatory organizations. 32. Matters Beyond Control of KCC You acknowledge and understand that on certain trading days, trading may cease or be restricted by order of the Exchange or governmental body in one or more classes of options and that this may result in financial disadvantage or loss to you. You agree to hold KCC, its officers, directors, employees and agents, harmless from this or any other loss resulting from any acts made in accordance with the constitution, rules, interpretations and policies, customs, or regulations of the Exchange, the Options Clearing Corporation, the National Association of Securities Dealers, Inc. or any other governmental or self-regulatory organization exercising jurisdiction. 33. Exercise of Options You understand and agree to abide by KCC's requirements and time limitations as communicated to you by your Broker for accepting an exercise notice from you. KCC allocates exercise assignment notices among customer short options positions according to an impartial system of a manual or computer generated random assignment method. TRUTH IN LENDING STATEMENT We wish to inform you of the terms and conditions under which interest charges will be applied to your accounts with us. 34. You will be charged interest on any credit extended to or maintained for you by KCC for the purpose of purchasing, carrying, or trading in any securities, or otherwise. 35. The annual rate of interest charged on the net debit balance in your margin account will be based on the schedule as provided by your Broker. The rate of interest applicable to your account is subject to change without prior notice when changes occur in the broker call money rate. The broker call money rate is based on published rates for call money lent brokers on stock exchange collateral or broker call money rates quoted by commercial banks, as determined by KCC. If your interest rate is to be increased for any other reason, you will be given at least forty-five (45) days prior written notice. The rate of interest charged on the debit balance in your margin account may be based on a number of factors, including the size of your debit balance, the market value and quality of the securities in your account, the equity in your account, the amount of commission paid by you, and other business considerations. 36. Debit balances represent money loaned to you by KCC. When you purchase securities on margin you must pay the amount of money required by regulations of the Federal Reserve Board. The balance of the purchase price is loaned to you. This loaned portion creates the debit balance upon which interest is charged. Each additional purchase adds to your debit balance as do your interest charges and any other charge which may be assessed to your account. 37. Any credit or debit balance on the cash account will be combined with the balance in the margin account for the purpose of computing interest. Only one net entry for interest will appear in the margin account. Interest charges will be made on any extension of credit even if it is not directly related to purchases in your margin account. Examples of such extensions of credit would include but not be limited to prepayments to you for securities sold and late payments received from you on purchases in your cash account. Interest charged shall be determined by the rate applied to your margin account. 38. Interest is calculated daily based on your ending net daily debit balance which includes any credit and debit balances in your cash and margin accounts during the interest period. The interest charge is culculated by multiplying the ending net daily debit balance by the interest rate and dividing by 360. Your Statement will show the net daily balance and interest rate used to arrive at the amount of interest charged. Any credit that appears on your Statement due to short sales (including short sales against the box) is offset by a debit of like amount because KCC has to borrow the security in order to deliver it to the buying broker. The credit generated by any short sales against the box does not reduce your debit balance for the purpose of computing interest until the short position is covered. If any security you sold short (or sold short against the box) appreciated in market price over the selling price, interest may be charged on the appreciation in value. If the security you sold short depreciated in market price, the debit balance is correspondingly reduced by the decrease in value. This practice is known as "marking-to-the-market." Daily closing prices are used to determine any appreciation or depreciation of the security sold short. REQUEST FOR TAXPAYER IDENTIFICATION NUMBER Instructions For Substitute Form W9 (Section references are to the Internal Revenue Code). Purpose of Form Complete this form and give it to the payer of interest, dividends and certain other payments (including broker and barter exchange transactions) so that you will not be subject to the 20% backup withholding that became effective January 1, 1984. Use this form to report and certify your taxpayer identification number (TIN) to the payer, to certify that you are not subject to backup withholding because of under reporting interest and dividends on your tax return, and to claim exemption from backup withholding if you are an exempt payee. If you do not complete this form properly and return it to the payer, the payer may be required to withhold 20% of payments made to you. What is Backup Withholding The interest and Dividend Tax Compliance Act of 1983 requires payers to withhold and pay to IRS 20% of payments of interest, dividends, and certain other payments under certain conditions. This is called "backup withholding." If you give the payer your correct TIN, certify your TIN when required, and report all your taxable interest and dividends on your tax return, your payments will not be subject to backup withholding. Payments you receive will be subject to backup withholding if: (1) You do not furnish your TIN to the payer, or (2) IRS notifies the payer that you furnished an incorrect TIN, or (3) You are notified by IRS that you are subject to backup withholding because you failed to report all your interest and dividends on your tax return (for interest and dividend accounts only), or (4) You fail to certify to the payer that you are not subject to backup withholding under (3) above (for interest and dividend accounts opened after 1983 only), or (5) You fail to certify your TIN. This applies only to interest, dividend, broker or barter exchange accounts opened after 1983, or broker accounts considered inactive in 1983. For other payments, you are subject to backup withholding only if (1) or (2) above applies. How to Obtain a TIN If you do not have a TIN, you should apply for one immediately. To apply for the number obtain Form SS-5, Application for a Social Security Number Card (for individuals), or Form SS-4, Application for Employer Identification Number (for businesses and all other entities), at your local office of the Social Security Administration or the Internal Revenue Service. Complete and file the appropriate form according to its instructions. If you do not have a TIN, write "Applied For" in the space for the TIN, sign and date the form, and give it to the payer. You will then have 60 days to obtain a TIN and furnish it to the payer. During the 60-day period, the payments you receive will not be subject to the 20% backup withholding. However, if the payer does not receive your TIN from you within 60 days, backup withholding will begin and continue until you furnish your TIN to the payer. Note: Writing "Applied For" on the form means that you have already applied for a TIN, OR that you intend to apply for one in the near future. As soon as you receive your TIN, complete another Form W-9, include your new TIN, sign and date the form, and give it to the payer. CASH ACCOUNTS SECTION 1 (SIGNATURE REQUIRED) I have read the preceding Agreement (as denoted in paragraphs 1-21) and understand and agree that my account with KCC will be governed by the provisions of this Agreement. By signing this Agreement, I acknowledge that I have received a copy of this Agreement. In addition to the foregoing, I have read the provisional sections (as denoted in paragraphs 22-27) and understand and agree that my account with KCC will be governed by the provisions of this Agreement. I also have selected the following money market mutual fund (a no-load invesment of free credit balances over $1,000 in my account). CEF Money Market Portfolio CEF Government Securities Portfolio - --- --- CEF Tax Exempt Portfolio CEF Tax Exempt California Money Market Fund - --- --- NO Money Market Fund - --- 286 BRIDGE ST. INC. - ------------------------------------- -------------------------------------- Print Name Print Name /s/ Barry Florescue - ------------------------------------- -------------------------------------- Signature (if Joint Account both Signature parties must sign) SUBSTITUTE FORM W9 SECTION 2 (SIGNATURE REQUIRED) Certification Under penalties of perjury, I certify that: 1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me), and 2) I am not subject to backup witholding either because I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or the IRS has notified me that I am no longer subject to backup withholding. If this paragraph (2) is not correct, please cross it out. Social security number 286 BRIDGE ST. INC. ---------------------------------------------- / / / /-/ / /-/ / / / / Name Assoicated with the number indicated OR: Employer identification number /s/ Barry Florescue 8/8/94 -------------------------------- ---------- /5/8/-/1/8/1/-/2/3/5/5/ Signature Date MARGIN AND OPTION ACCOUNTS SECTION 3 (SIGN IF APPLICABLE) In addition to the foregoing, I have read the provisional sections (as denoted in paragraphs 28-38) that pertain to margin and option accounts and I understand and agree that my activities in these areas at KCC will be governed by these provisions. BY SIGNING THIS AGREEMENT I ACKNOWLEDGE THAT MY SECURITIES AND PROPERTY, IN ACCORDANCE WITH PARAGRAPH 29, MAY BE LOANED SEPARATELY OR TOGETHER, WITH THE SECURITIES OR PROPERTY OF OTHERS, EITHER TO KCC OR OTHERS. 286 BRIDGE ST. INC. - ------------------------------------- -------------------------------------- Print Name Print Name /s/ Barry Florescue - ------------------------------------- -------------------------------------- Signature (if Joing Account both Signature parties must sign) 286 BRIDGE STREET INC 48168890 701 S E SIXTH AVENUE RB01 SUITE 204 4C DELRAY BEACH FL 33483-5186 Accepted at KCC by: Date: -------------------------------------------- ------ EX-99.C 4 CLIENT AGREEMENT, EFFECTIVE AS OF AUGUST 22, 1992 EXHIBIT C LADENBURG, THALMANN & CO. INC. CORRESPONDENT SERVICES CORPORATION [CSC] CLIENT'S AGREEMENT Wire Code IQ Account Number 36616 Full Account Title Florescue Family Corp. Broker 70 Introduction 1. This Agreement contains the terms governing any account(s) in my name for the purchase or sale of property. In the Agreement, "I," "me" or "my" means each person who signs below."You," "your" or "CSC" means Correspondent Services Corporation and/or Ladenburg, Thalmann & Co. Inc., as applicable, its successor firms, subsidiaries, corespondents, or affiliates, or employees. "Property" means all securities, including but not limited to monies, stocks, options, bonds, notes, futures, contracts, commodities, certificates of deposit and other obligations, contracts or securities. Applicable Rules and Regulations 2. All transactions for me shall be subject to the constitution, rules, regulations, bylaws, interpretations, customs and usages of the exchange or market and its clearing house, if any, where the transactions are executed. Such transactions are also subject, where applicable, to the provisions, rules and regulations of the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Board of Governors of the Federal Reserve System in existence at this time and as later amended and supplemented. Amendment or Waiver 3. I agree that you may change the terms of this agreement at any time upon prior written notice to me. By continuing to accept the services offered by you, I indicate to you my acceptance of these changes. If I do not accept the changes, I must notify you in writing of my refusal and my account will be cancelled. However, I will remain liable for any outstanding Debits and/or Charges on my account. Transactions and Settlements 4. All orders for the purchase and sale of any property will be given by me and executed with the distinct understanding that an actual purchase or sale is intended and that it is my intention and obligation in every case to deliver property to cover any and all sales and in the case of purchases to receive and pay for property that I will do so upon your demand. In case you make a short sale of any property at my direction or in case I fail to deliver to you any property which you have sold at my direction, you are authorized to borrow the property necessary to enable you to make delivery to the purchaser and I agree to be responsible for the cost or loss you may incur, or the cost of obtaining the property if you are unable to borrow it. No settlement of my account(s) may occur without your first receiving all property for which the account is short and all property in which the account(s) are long being paid for in full and the property then delivered. You and your correspondents are my constituted agents to complete all such transactions and are authorized to make advances and expend monies as are required. Marking Sell Orders Long or Short 5. When placing with you any sell order for a short account, I will designate it as such and hereby authorize you to mark the order as being "short." When placing with you any order for a long account, I will designate it as such and hereby authorize you to mark the order as being "long." Any sell order which I shall designate as being for a long account, is for property which is owned by me and, if you are unable to deliver this property from any account(s), the placing of the order will constitute my representation that the property will be delivered as required and that I will reimburse you for any expense incurred. Binding Order 6. Any order which I give shall be binding upon me, and (my/our) personal representative until you receive notice of my death. Such death and notice will not affect your right to take any action which you could have taken if I had not died. Accounts Carried as Clearing Broker 7. If you are carrying the account of the undersigned as clearing broker by arrangement with another broker through whose courtesy the account of the undersigned has been introduced to you, then until receipt from the undersigned of written notice to the contrary, you may accept from such other broker, without inquiry or investigation by you (a) orders for the purchases or sale in said account of securities and other property on margin or otherwise, and (b) any other instructions concerning said account. You shall not be responsible or liable for any sale or omissions of such other broker or its employees. Lien Provisions 8. All property held or purchased shall be subject to a lien in your favor for the discharge of all my indebtedness and any other obligations that I may owe to you, however and whenever arising, and may be held by you as security for the payment of any such obligations or indebtedness to you in any account you maintain for me including any accounts in which I may have an interest. You are authorized without notice to me whenever you deem it advisable from time to time (a) to transfer interchangeably between any account(s) I have with you any or all of the Property so held, without regard to whether you have in your possession or subject to your control other Property of the same kind and amount; (b) in the usual course of business pledge, repledge, hypothecate (either for the amount I owe or for a greater or lesser sum) and lend the same to you as broker or to others from time to time, separately or commingled with Property carried for other clients and you shall not be required to delivered to me the same Property but only Property of the same kind and amount. Payment of Indebtedness Upon Demand 9. I shall at all times be liable for the payment of any amounts advanced, any debit balance or other obligations owing in any of my account(s) with you and I shall be liable to you for any deficiency remaining in any such account(s) in the event of the liquidation thereof, in whole or in part, by you or by me. I shall make payment of any such debit balance, obligation, deficiency, indebtedness, including attorney's fees, If incurred by you. Interest Provision 10. All amounts advanced and other balances due shall be charged interest in accordance with your usual custom, which may include the compounding of interest, including any increases in rates which reflect adjustments in the Base Loan Rate, and such other charges as you may make to cover your facilities and extra services. Payment of all amounts advanced and other balances due, together with the interest thereon, shall be made by me to you at any of your offices which will act as my agent for the transmittal of such amounts and other balances due to you at New York, New York. I HAVE READ AND UNDERSTAND THE STATEMENT OF CREDIT PRACTICES DESCRIBING INTEREST CHARGES PRINTED ON THE REVERSE SIDE. Sub-Agents 11. You may employ sub-brokers and shall be responsible only for reasonable care in their selection. You may deal with market makers or members of any exchange known as specialists or known as odd lot dealers and in the execution of my orders they may act as sub-brokers for me and may also buy or sell the property for themselves as dealers for their own account. Margin Requirements 12. I agree to maintain in account(s) with you such positions and margin as required by all applicable statutes, rules, regulations, procedures, and customs, or as you deem necessary or advisable, and where applicable, to satisfy any and all margin calls issued in connection with such business. Liquidations and Covering Positions 13. You shall have the right in accordance with your general policies regarding your margin maintenance requirements in existence at the time or; if in your discretion you consider it necessary for your protection to require additional collateral or the liquidation of any account of mine, or, in the event a petition in bankruptcy, or for appointment of a receiver is filed by or against me, or, an attachment is levied against the account(s) of mine, or; in the event of my death; to sell any or all property in the account(s) of mine with you, whether carried individually or jointly with others, to buy any or all property which may be short in such account(s), to cancel any open orders and to close any or all outstanding contracts, all without demand for margin or additional margin, other notice of sale or purchase, or other notice of advertisement. Any such sales or purchases may be made at your discretion on any exchange or other market where such business is usually transacted, or at public auction or private sale, and you may be the purchasers for your own account. It is understood a prior demand, or call, or prior notice of the time and place of such sale or purchase shall not be considered a waiver of your right to sell or buy without demand or notice as herein provided. Binding Notice of Agreement 14. I expressly agree you will not be bound by any representation or agreement made by any of your employees or agents which purports to effect or diminish your rights under this agreement. Effect of Law or Rule Change 15. In the event any one or more of the provisions contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such finding or holding shall only affect the provision(s) involved and the remainder of this agreement and the application of all other provisions shall not be affected. Address 16. My address below is and will continue to be a correct address until your Lincoln Harbor Office receives written notice of any change. Notices and communications sent to me at such address will constitute personal delivery to me, whether actually received or not. Client Representation 17. I represent to have reached the age of majority according to the laws of the state of my residence. I agree to abide by the rules of the regulatory agencies and your firm's policy if I am employed by any exchange or any corporation of which any exchange owns a majority of the capital stock; member or firm registered on any exchange, bank, trust company, insurance company; or any company or individual dealing, either as broker or principal, in stocks, bonds, or any other securities, commodities, or commercial paper. If during this agreement I become such an employee, you will be notified. No one other than me has or will have an interest in any account(s) of mine unless you are notified in writing by me. Jurisdiction 18. All transactions made for my account(s) opened with you or introduced to you as clearing broker through the aforementioned introducing firm shall be governed by the terms of this agreement. This agreement and its enforcement shall be construed and governed by the laws of the State of New York, and shall be binding upon my heirs, executors, administrators, successors, and assigns. Credit Review 19. An investigation of my personal and business credit may be made and I may make written request, within a reasonable time, for disclosure of the nature of the investigation. ARBITRATION 20. 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. I AGREE AND BY CARRYING AN ACCOUNT FOR ME CSC AND/OR LADENBURG, THALMANN & CO., INC. AGREE(S) THAT ANY AND ALL CONTROVERSIES WHICH MAY ARISE BETWEEN ME AND CSC AND/OR LADENBURG, THALMANN & CO., INC. CONCERNING ANY ACCOUNT, TRANSACTION, DISPUTE OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD UNDER AND PURSUANT TO AND BE GOVERNED BY THE FEDERAL ARBITRATION ACT, AND SHALL BE CONDUCTED BEFORE AN ARBITRATION PANEL CONVENED BY THE NEW YORK STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. I MAY ALSO SELECT ANY OTHER NATIONAL SECURITIES EXCHANGE'S ARBITRATION FORUM UPON WHICH CSC AND/OR LADENBURG, THALMANN & CO. INC. IS LEGALLY REQUIRED TO ARBITRATE THE CONTROVERSY WITH ME, INCLUDING, WHERE APPLICABLE, THE MUNICIPAL SECURITIES RULE MAKING BOARD. SUCH ARBITRATION SHALL BE GOVERNED BY THE RULES OF THE ORGANIZATION CONVENING THE PANEL. I MAY ELECT IN THE FIRST INSTANCE THE ARBITRATION FORUM, BUT IF I FAIL TO MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO YOU AT YOUR MAIN OFFICE, BEFORE THE EXPIRATION OF FIVE DAYS (5) AFTER RECEIPT OF A WRITTEN REQUEST FROM YOU TO MAKE SUCH ELECTION, THEN YOU MAY MAKE SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL; (I) THE CLASS CERTIFICATION IS DENIED; (H) THE CLASS IS DECERTIFIED; OR (J) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FOREBEARANCE TO ENFORECE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN. I EXPRESSLY AGREE THAT SERVICE OF PROCESS IN ANY ACTION SHALL BE SUFFICIENT IF SERVED BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT MY LAST ADDRESS KNOWN TO YOU. I EXPRESSLY WAIVE ANY DEFENSE TO SERVICE OF PROCESS AS SET FORTH ABOVE. Assignment 21. This agreement may be assigned by you and will inure to the benefit of your successors and assigns and you may transfer or assign the account(s) of mine to them, which shall be binding on me and my personal representatives. Accuracy of Reports 22. ALL REPORTS OF EXECUTION OF ORDERS AND ACCOUNT STATEMENTS SHALL BE CONCLUSIVE IF NOT OBJECTED TO BY ME IN WRITING IMMEDIATELY BY NOTICE SENT TO YOU BY REGISTERED MAIL. Joint and Several Liability and Joint Accounts 23. If more than one person signs this agreement, our obligations under this agreement shall be joint and several. If more than one person signs this agreement, you may accept any orders and instructions from each, and upon receipt of inconsistent instructions of a court order, may suspend or terminate my account. Liability for Costs of Collection 24. I agree to pay you the reasonable costs and expenses of collection, including attorney's fees, for any unpaid Debits, Charges, and other amounts owing you. Loan Consent 25. BY SIGNING THIS AGREEMENT I ACKNOWLEDGE THAT YOU AND YOUR SUCCESSORS AND ASSIGNS ARE AUTHORIZED IN THE USUAL COURSE OF BUSINES TO LEND, RELEND, HYPOTHECATE, REHYPOTHECATE, PLEDGE OR REPLEDGE SEPARATELY OR TOGETHER WITH THE PROPERTY OF OTHERS EITHER TO YOURSELVES OR TO OTHERS ANY PROPERTY WHICH YOU MAY BE CARRYING FOR ME ON MARGIN. THIS AUTHORIZATION SHALL APPLY TO ALL ACCOUNTS CARRIED BY YOU FOR ME AND SHALL REMAIN IN FULL FORCE UNTIL WRITTEN NOTICE OF REVOCATION IS RECEIVED BY YOU. BY SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT: 1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE LOANED TO THE BROKER OR LOANED OUT TO OTHERS AND; 2. THAT THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PAGE 1 AT PARAGRAPH 20. LADENBURG, THALMANN & CO. INC. Correspondent Services Incorporation [CSC] /s/ Barry Florescue President [ CLIENT, BE ] --------------------------------------------------------- [SURE TO RETAIN] (Signature of Principal) (Name and **************) Date [ YOUR COPY ] --------------------------------------------------------- (Signature of Second Party, if a Joint Account) Date - -------------------------------------------------------------------------------- No. of Street Address City or Town State Postal Code LADENBURG, THALMANN & CO. INC. STATEMENT OF CREDIT PRACTICES (SEC Rule 10b-16) Effective August 22, 1992 Correspondent Services Corporation [CSC] Ladenburg Thalmann clears through Correspondent Services Corporation [CSC]. Securities held by CSC are protected by insurance coverage of up to $2,500,000 including $100,000 for free cash balances. The following discussion provides a description of our interest charges and other matters relating to the extension or maintenance of credit in connection with your securities accounts. Since it is intended to be all- inclusive, some of the discussion may go beyond your own particular situation. Applicability of Interest Charge You will be charged interest on any credit extended to you by Correspondent Services Corporation (CSC) for the purpose of purchasing, carrying, trading, or maintaining any securities or other product or service in your account. Interest Rate The annual rate of interest which you will be charged is based upon the Base Loan Rate ("Base Loan Rate") which will be internally established from time to time based on our assessment of commercially recognized interest rates. Such rates may include but are not limited to the prime rate, discount rate, broker call rate, federal funds rate, LIBOR, and other regularly published lending rates. The agreements with our clients for the extension of credit are governed by the laws of the State of New York where CSC maintains its principal place of business. The interest charge for each interest period is due and payable at the close of that interest period. The exact amount due may be obtained from your Investment Representative or the Office Manager of the firm servicing your account. Interest charges not paid at the close of the interest period will be added to the opening debit balance in your account for the next interest period. Please note that the Base Loan Rate is an internally computed rate that may change without notice. The rates at which interest is charged on funds borrowed are dependent upon the amount borrowed and are based on our usual sliding scale or percentages added to the current Base Loan Rate. Subject to applicable law, your rate will be 1-1/2% above the Basic Loan Rate. Change of Rate Without Prior Notice Your stated interest rate will change without notice each period in accordance with changes in your average net loan (debit) balance and the Base Loan Rate. If your interest rate is to be increased for any other reason, at least 30 days prior written notice will be given by CSC. Certain accounts may be assigned adjusted rates as warranted by overall business relationships in the discretion of CSC. Computation of Interest Charge The following is set forth so that you can understand how interest charges are computed and so that you may verify interest charges shown on your statement. We calculate daily loan (debit*) or credit balances for your account by taking the balances as of the close of the previous interest period (or the opening balance on a new account) and calculate for each day a new net loan (debit) balance** from the previous daily balance by taking into consideration both debits and credits which occurred that day. The market value of securities sold not long or not in good deliverable form will be deducted from the credit balance in your account. Credit balances resulting from a short sale are disregarded because this credit balance is used to collateralize stock borrowed to make delivery against a short sale. At the end of the interest period the daily loan (debit) balances for each day of the interest period are totalled and divided by the number of loan (debit) days in the interest period giving the average net loan (debit) balance which forms the basis for interest calculations. The applicable interest period is from the 22nd day of each month to the 21st day of the following month, except for the months of December and January. In December the applicable interest period is November 22 to December 31; in January the applicable interest period is January 1 to January 21. Your statement should be retained to assist you in verifying interest charges. The "Credit Summary" section of your statement provides the interest charge for the current interest period as well as the average net loan (debit) balance and the interest rate applied. You can verify your interest charge based on a 360 day year within a few cents by using the following formula: Average Loan (Debit) Days Loan X Interest Rate X in Interest Period Balance ------------------ 360 * Average Daily Debit Balance - This represents the sum of the daily loan (debit) balances in your account divided by the number of days on which the loan (debit) balances existed. ** Net Loan (Debit) Balance - This is the debit balance minus credit balance (ndb = db - cb). Table 1 set forth below provides the effective annual interest rate for your stated interest rate for 365 days for the above interest calculations. Marking to the Market If you sell short (or short against the box), and the market value of the security you sold increases above your selling price, the increase will be charged to your account - see Activity section (with an offsetting credit to the Short Account - see Short Account Activity section) and interest on the increase will be charged in the Activity section. Conversely, any decrease in market value will be credited to your account and the interest charges will be accordingly reduced. This practice of determining the change in current market value is commonly referred to as "marking to the market" and is normally done once a week. Other Charges Separate interest charges may be made in the account in connection with: a) prepayments - payments to a client of the proceeds of a security sale before the regular settlement date. b) "when issued" transactions - when the market price of the "when issued" security changes from the contract price by an amount that exceeds the cash deposit, interest may be charged on such difference. c) late payments - payments for securities purchased which are received past settlement date. Liens and Additional Collateral For all securities which we have or at any time may hold or carry for you in any account of yours (either individually or jointly with others), or which may be deposited with us for any purpose, including safekeeping, we as a pledgee have a general lien for the discharge of all your obligations to us, however arising and irrespective of the number of accounts you have with us. We may require you to deposit additional collateral in accordance with the rules and regulations of the Federal Reserve Board, the New York Stock Exchange, the American Stock Exchange, and any other regulatory agency to whose jurisdiction we are subject. In addition, we may require you to deposit such additional collateral as we, in our sole discretion, determine is needed as security for your obligation to us. Ordinarily, a request for additional margin will be made when the equity in the account falls below 30 percent of the market value of all marginable securities in the account (the equity is the excess market value of the securities in the account over the loan or debit balance). Although we do not limit the factors which may cause us to require additional margin, factors such as market fluctuation, high concentration or the overall credit standing of the account will be considered. These margin calls may be met by delivery of either additional marginable securities or cash. EX-99.D 5 CUSTOMER AGREEMENT, DATED JANUARY 13, 1993 CORPORATE ACCOUNT AGREEMENT EXHIBIT D ADLER, COLEMAN & CO., INC. 20 Broad Street, New York, New York 10005 / (212) 422-9780 Florescue Family Corporation 49-501308 4902 CUSTOMER'S NAME ACCOUNT NUMBER (AUTHORIZING TRADING IN SECURITIES AND PERMITTING MARGIN TRANSACTIONS, OPTIONS AND SHORT SALES) Gentlemen: The undersigned Corporation, by, Barry Florescue, its President, pursuant to resolutions of the BOARD OF DIRECTORS, a copy of which, certified by the Secretary, is annexed hereto, hereby authorizes you to open an account in the name of said Corporation; and the undersigned represent that no one other than the undersigned has any interest in such account. The undersigned also encloses herewith your Account Application, Margin Agreement/Loan Consent (if applicable) and Options Agreement (if applicable) duly executed on behalf of the Corporation. This authorization shall continue in force until revoked by the undersigned Corporation by a written notice, addressed to you and delivered at your office at 20 Broad Street, New York, N.Y. Dated 11/23/93 -------------------------- Delray Beach, FL -------------------------- (City) (State) Very truly yours, --------------------------------- By /s/ ------------------------------ President I, Mark Myers, being the Secretary of Florescue Family Corp., hereby certify that the annexed resolutions were duly adopted at a meeting of the Board of Directors of said Corporation, duly held on the 23 day of Nov., at which a quorum of said Board of Directors was present and acting throughout and that no action has been taken to rescind or amend said resolutions and that the same are now in full force and effect. I further certify that each of the following has been duly elected, is now legally holding the office set opposite his name and the signature set opposite his name is genuine. Barry Florescue President - ---------------------, - ---------------------, Vice-President - ---------------------, Treasurer Mark Myers - ---------------------, Secretary I further certify that the said Corporation is duly organized and existing and has the power to take the action called for by the resolutions annexed hereto. IN WITNESS WHEREOF, I have hereunto affixed my hand this 23 day of Nov., 1993. /s/ Mark Myers ------------------------- Secretary CERTIFIED COPY OF CERTAIN RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS WHEREBY THE ESTABLISHMENT AND MAINTENANCE OF ACCOUNTS (WITH LIMITED AUTHORITY) HAVE BEEN AUTHORIZED RESOLVED-- FIRST: That the President or any Vice-President of this Corporation, or or be and they hereby are, and each of them hereby is, authorized and empowered, for and on behalf of this Corporation (herein called the "Corporation"), to establish and maintain one or more accounts, with ADLER, COLEMAN & CO., INC. (herein called the "Brokers") and to deposit funds in any of said accounts and to deliver to the Brokers for said accounts any and all forms of securities (including within the meaning of such term as used herein, but not by way of limitation, shares, stocks, bonds, debentures, notes, script, participation certificates, rights to subscribe, options, warrants, certificates of deposit, mortgages, choses in action, evidences of indebtedness, commercial paper, certificates of indebtedness and certificates of interest of any and every kind and nature whatsoever, secured or unsecured, whether represented by trust, participating and/or other certificates or otherwise); to sell any and all forms of securities which may be in the possession of the Brokers and which they may be carrying for the Corporation in any of said accounts; and to buy any and all forms of securities for the account of the Corporation. The fullest authority at all times with respect to any such commitment or with respect to any transaction deemed by any of the said officers and/or agents to be proper in connection therewith is hereby conferred, including authority (without limiting the generality of the foregoing) to give written or oral instructions to the Brokers with respect to said transactions; to bind and obligate the Corporation to and for the carrying out of any contract, arrangement, or transaction, which shall be entered into by any such officer and/or agent for and on behalf of the Corporation with or through the Brokers; to pay in cash or by checks and/or drafts drawn upon the funds of the Corporation such sums as may be necessary in connection with any of the said accounts; to order the transfer or delivery of securities to any other person whatsoever, and/or to order the transfer of record of any securities to any name selected by any of the said officers or agents; to affix the corporate seal to any documents or agreements, or otherwise; to endorse any securities in order to pass title thereto; to direct the sale or exercise of any rights with respect to any securities; to sign for the Corporation all releases, powers of attorney and/or other documents in connection with any such account, and to agree to any terms or conditions to control any such account; to direct the Brokers to surrender any securities to the proper agent or party for the purpose of effecting any exchange or conversion, or for the purpose of deposit with any protective or similar committee, or otherwise; to accept delivery of any securities; to appoint any other person or persons to do any and all things which any of the said officers and/or agents is hereby empowered to do, and generally to do and take all action necessary in connection with the account, or considered desirable by such officer and/or agent with respect thereto. SECOND: That the Brokers may deal with any and all of the persons directly or indirectly by the foregoing resolution empowered, as though they were dealing with the Corporation directly. THIRD: That the Secretary of the Corporation be and he hereby is authorized, empowered and directed to certify, under the seal of the Corporation, or otherwise to the Brokers: (a) a true copy of these resolutions; (b) specimen signatures of each and every person by these resolutions empowered; (c) a certificate (which, if required by the Brokers, shall be supported by an opinion of the general counsel of the Corporation, or other counsel satisfactory to the Brokers) that the Corporation is duly organized and existing, that its charter empowered it to transact the business by these resolutions defined, and that no limitation has been imposed upon such powers by the By-Laws or otherwise. FOURTH: That the Brokers may rely upon any certification given in accordance with these resolutions, as continuing fully effective unless and until the Brokers shall receive due written notice of a change in or the rescission of authority as evidenced, and the dispatch or receipt of any other form of notice shall not constitute a waiver of this provision, nor shall the fact that any person hereby empowered ceases to be an officer of the Corporation or becomes an officer under some other title in any way affect the powers hereby conferred. The failure to supply any specimen signature shall not invalidate any transaction if the transaction is in accordance with authority actually granted. FIFTH: That in the event of any change in the office or powers of persons hereby empowered, the Secretary shall certify such changes to the Brokers in writing in the manner hereinabove provided, which notification, when received, shall be adequate both to terminate the powers of the persons theretofore authorized, and to empower the persons thereby substituted. SIXTH: That the foregoing resolutions and the certificates actually furnished to the Brokers by the Secretary of the Corporation pursuant thereto, be and they hereby are made irrevocable until written notice of the revocation thereof shall have been received by the Brokers. (b) A statement of any of the undersigned's accounts shall be conclusive and binding upon the undersigned if the undersigned does not object thereto in writing within ten days after Adler Coleman has sent the statement of account to the undersigned by mail or otherwise. (c) Communications may be sent to the undersigned at the address of the undersigned given in the Account Application or at such other address as the undersigned may hereafter specify, and all communications so sent, whether by messenger, mail, telegraph or other electronic means, shall be deemed given to the undersigned personally, whether actually received or not, on the date sent by messenger, telegraph or other electronic means or three business days after mailed. (d) Market prices appearing on a statement of account for purposes of valuing the portfolio of the undersigned shall be used merely as a guide and shall not be relied upon as, or deemed to be, accurate or correct. 9. Arbitration. o Arbitration is final and binding on the parties. o The parties are waiving their right to seek remedies in court, including the right to jury trial. o Pre-arbitration discovery is generally more limited than and different from court proceedings. o 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. o The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. The undersigned agrees and, by carrying an account for the undersigned, Adler Coleman, and your broker agree, that except as inconsistent with the foregong sentence, all controversies which may arise between the undersigned and Adler Coleman and/or your broker concerning any transaction or the constructions, performance or breach of this or any other agreement between the undersigned and Adler Coleman and/or your broker, whether entered into prior on or subsequent to the date hereof, shall be determined by arbitration to be held in accordance with the rules of the Board of Arbitration of The New York Stock Exchange, Inc., the rules of The American Arbitration Association or the Code of Arbitration Procedure of National Association of Securities Dealers Inc., whichever the undersigned may select. If the undersigned does not make a selection by registered or certified mail addressed to Adler Coleman or your broker at its main office within five business days after Adler Coleman or your broker shall have given notice to the undersigned requesting a selection, Adler Coleman may make a selection on behalf of the undersigned. No arbitration or other proceeding with respect to a controversy may be commenced by the undersigned more than one year after the action or omission upon which such controversy is based. If the undersigned shall by any court proceeding be unsuccessful in resisting arbitration, the undersigned shall reimburse Adler Coleman and your broker for all costs and expenses (including attorneys' fees) incurred by them in connection with such court proceeding. Any arbitration award shall be final, and judgment on the award rendered may be entered in any court having jurisdiction. 10. Applicable Rules and Regulations. All transactions effected pursuant to this Customer Agreement shall be subject to (i) the constitution, by-laws, rules, regulations, customs and usages of the exchange or market and its clearing house, if any, where such transactions are executed by Adler Coleman or its agents, (ii) applicable federal, state and local laws, rules and regulations and (iii) the constitution, by-laws, rules and regulations of any securities self-regulatory authority to whose jurisdiction Adler Coleman is subject, in each case whether now existing or hereafter adopted or amended. 11. Governing Law. Except as provided in Section 10, this Customer Agreement shall be governed by and construed in accordance with the laws of the State of New York. The undersigned acknowledges that the undersigned's Account Application has been submitted without solicitation by Adler Coleman upon the understanding that neither it nor any agreement related thereto shall be effective until they are accepted by Adler Coleman in the State of New York. 12. Assignment. All agreements between the undersigned and Adler Coleman and all instruments and other documents delivered by the undersigned to Adler Coleman may be relied upon by, and shall inure to the benefit of, Adler Coleman's successors and assigns. Adler Coleman may transfer all of the undersigned's accounts to any such successor or assign. This Agreement shall be binding upon the undersigned's personal representative, heirs and assigns. 13. Capacity. The undersigned,if an individual, is of legal age. Neither the undersigned nor the undersigned's spouse is (unless otherwise indicated in the undersigned's Account Application) an employee of any exchange, any corporation of which any exchange owns a majority of the capital stock, any member firm or member corporation of any exchange, any bank, trust company or insurance company or any corporation, association, firm or individual engaged in the business of dealing, either as a broker or principal, in securities, bills of exchange, acceptances or other forms of commercial paper. The undersigned agrees to promptly notify Adler Coleman in writing if either the undersigned or the undersigned's spouse becomes so employed. If either the undersigned or the undersigned's spouse is or becomes so employed, Adler Coleman will not execute any transaction for the undersigned's account until Adler Coleman has received written confirmation that the employer is aware of the undersigned's account with Adler Coleman. Adler Coleman will also notify the employer, prior to the execution of any transaction for the undersigned's account, of the undersigned's intention to open or maintain an account with Adler Coleman and, upon written request by the employer, transmit to the employer duplicate copies of confirmations, statements or other information with respect to the undersigned's account. Except as otherwise indicated in the undersigned's Account Application, no one other than the undersigned has or will have an interest (other than any community property interest that the undersigned's spouse may have under applicable law) in any account of the undersigned with Adler Coleman. 14. Payments. No acceptance by Adler Coleman of a lesser sum than the full amount due shall be deemed to be other than a payment on account, and no endorsement or statement on any check or any letter accompanying any check or payment shall be deemed to be an accord and satisfaction. 15. Joint Accounts. If the undersigned shall consist of more than one person, the obligations and liabilities of each person with respect to any account of the undersigned shall be joint and several. 16. Liability for Others. Adler Coleman shall not have any responsibility or liability for any actions or omissions hereunder or otherwise (i) of any agent selected by Adler Coleman with reasonable care or (ii) of Adler Coleman or its employees unless such actions or omissions constitute gross negligence or arose out of willful misconduct. Without limiting the foregoing, Adler Coleman shall not be liable for any loss or liability caused directly or indirectly by governmental restrictions, exchange or market rulings, suspensions of trading, interruptions in telecommunications services or facilities, wars, strikes or other conditions beyond Adler Coleman's control. 17. Selection of Exchange or Market. Unless specifically instructed otherwise, Adler Coleman is authorized to select the exchange or market where all orders will be executed. 18. Inquiries. The undersigned authorizes Adler Coleman to furnish upon request (i) to the broker of the undersigned all information relating to the undersigned's accounts and (ii) to the issuer of securities the undersigned's name, address and securities positions relating to the securities of such issuer. 19. Termination. This Customer Agreement may be terminated by the undersigned or Adler Coleman only by giving written notice to that effect to the other of them. Notwithstanding any termination of this Customer Agreement or any closing of any account of the undersigned, this Customer Agreement shall remain in full force and effect with respect to all actions and omissions occurring prior to such termination or closing. 20. Implied Waivers. No action or inaction on the part of Adler Coleman shall be deemed to be a waiver, continuing or otherwise, of its rights or the undersigned's obligations hereunder or otherwise, unless such waiver is set forth in a writing signed by Adler Coleman. 21. Disclosure Letter. The undersigned will not enter an order to trade or carry any security until after the undersigned has received and reviewed a letter entitled "Disclosure Statement Pursuant to SEC Approved Amendments to New York Stock Exchange Rules 302 and 405 Effective February 19, 1982" which described the agreement between your broker, as introducing broker, and Adler Coleman, as carrying broker, and agrees to be bound by the division of responsibilities reflected therein. 22. Miscellaneous. (a) Free credit balances in any account of the undersigned with Adler Coleman shall be maintained in such account solely for the purpose of investing or reinvesting in securities and other property. (b) All telephone calls with Adler Coleman shall be tape recorded. (c) If any provision or condition of this Customer Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision or condition and all other provisions and conditions of this Customer Agreement shall remain in full force and effect. (d) Except as otherwise expressly provided herein, no waiver, modification or amendment of any provision of this Customer Agreement and no other agreement, document or instrument shall be effective against or binding upon Adler Coleman unless it is contained in a writing signed by Adler Coleman. (e) This Customer Agreement shall be deemed to be automatically amended with the consent of the undersigned, Adler Coleman, and your broker as necessary to conform to the requirements of any exchange or market and its clearing house, if any Securities and Exchange Commission, National Association of Securities Dealers, Inc. and Securities Investor Protection Corporation. (f) All rights of Adler Coleman contained herein are in addition to any other rights it may have at law, in equity or otherwise, and the exercise of any such right shall not constitute a waiver of or a limitation on Adler Coleman's right to exercise any such other right when and as it may determine. In consideration of Adler Coleman accepting a Margin Account of the undersigned the undersigned understands and agrees that, in addition to the provisions of the undersigned's Customer Agreement, the following provisions apply: 1. Scope of Provisions. These provisions shall apply to all transactions effected by Adler Coleman on margin in or for any account of the undersigned and to all securities carried by Adler Coleman on margin in or for any account of the undersigned. 2. Margin Requirements. The undersigned shall at all times maintain such securities and/or cash in the accounts of the undersigned for margin purposes as Adler Coleman shall require from time to time. Such requirements may be stricter than those required by applicable laws, rules and regulations. 3. Interest Charges on Debit Balances. The undersigned agrees to pay interest on all debit balances in any of the undersigned's accounts with Adler Coleman. Interest shall be computed and charged in accordance with Adler Coleman's standard methods and procedures. Such methods and procedures may be changed from time to time and at any time. Advance notice of such change shall be given to the undersigned. Unless the undersigned is notified in writing to the contrary, the interest rate shall not exceed 1/2% above the "broker call rate" in effect from time to time. In no event, however, shall the interest rate exceed the maximum rate permitted by applicable law. Unpaid interest charges will be added to the opening balance of the next computation period, which means that the undersigned will be charged interest on interest due in respect of a prior computation period. 4. Disclosure Statement. The undersigned will not enter an order to trade or carry any securities on margin until after the undersigned has received and reviewed the Initial Disclosure Statement required to be furnished by Adler Coleman to the undersigned pursuant to the Truth-In-Lending Rule adopted by the Securities and Exchange Commission. 5. Pledge of Securities. All securities now or hereafter carried by Adler Coleman in or for any account of the undersigned may be pledged, repledged, hypothecated, or re-hypothecated by Adler Coleman from time to time without notice to the undersigned either separately or in common with other securities for any amount due in the accounts of the undersigned or for any greater amount, and Adler Coleman may do so without retaining in its possession or under its control for delivery a like amount of similar securities. Adler Coleman is hereby authorized to lend, to itself as principal or otherwise, or to others any securities held by Adler Coleman on margin for the account of, or under the control of, the undersigned either separately or in common with other securities, without notice to the undersigned. 6. Short Sales. The undersigned agrees to notify Adler Coleman either directly or through your Broker of any "short" sale by the undersigned at the time the order therefore is placed, and the undersigned hereby authorizes Adler Coleman to mark any such order as being "short." 7. Liquidiation. If the equity in the undersigned's Margin Account falls below the maintenance margin requirements established from time to time by Adler Coleman, Adler Coleman shall be entitled to exercise any and all rights set forth in the undersigned's Customer Agreement. Nothing contained in this Section 7 shall be deemed to limit or restrict the circumstances under which such rights may be exercised. Adler Coleman shall not be liable to the undersigned for exercising any such rights if changes in the market price or value of securities or open contract positions then held in the undersigned's Margin Account would have alleviated the maintenance margin deficiency. The undersigned acknowledges that the undersigned has read, understands and agrees to the terms of this Margin Agreement, and FURTHER ACKNOWLEDGES THAT THE UNDERSIGNED'S SECURITIES MAY BE LOANED TO ADLER COLEMAN OR LOANED OUT TO OTHERS. x /s/ Barry Florescue, President 1/12/93 x - ------------------------------------------ --------------------------------- Signature (and Title, if applicable) Date Signature (if Joint Account) Date CUSTOMER FINANCIAL STATEMENT/OPTION AGREEMENT Note: This section should only be completed if you wish to trade options. The information requested below is required by the rules and regulations of the various designated option exchanges. The Options Clearing Corporation and the National Association of Securities Dealers, Inc. EX-99.E 6 LETTER DATED MARCH 7, 1995 EXHIBIT E Florescue Family Corporation 701 Southeast 6th Avenue, Suite 204 Delray Beach, Florida 33483 March 7, 1995 The Board of Directors of Marietta Corporation 37 Huntington Street Cortland, NY 13045 Attention: Stephen D. Tannen, Chairman of the Board, President and Chief Executive Officer Dear Steve: As you know from our recent conversations, I am very disappointed in the conduct of the Board of Directors of Marietta Corporation (the "Company") in light of recent developments. When we met in late January, 1995, I indicated to you that as one of the Company's largest shareholders my principal interest was, and the prime objective of the Board should be, the enhancement of shareholder value. I suggested to you that there were alternatives available to the Company to accomplish this objective and offered to provide assistance, financial or otherwise. Subsequent to our meeting, Dickstein Partners, Inc. and Calibre Capital Advisors Inc. proposed to acquire the Common Stock of the Company for $11 per share (the "Dickstein Proposal"). To date, the Company has not responded to me or to the Dickstein Proposal. Instead, the Company appears to continue to be operated without recognition of the important issues now facing it and without regard to the impact of decisions on shareholders. This is very troubling but perhaps not surprising since the members of the Board of Directors, collectively, do not own even 150,000 shares of the outstanding Common Stock. Specifically, the Company has committed to make $6 million in capital expenditures in the near term, twice the level of such expenditures last year. The commitment for these capital expenditures has been made notwithstanding the fact the Company has performed poorly and continues to lag in sales and earnings. It is difficult to understand how doubling capital expenditures is prudent or justified or benefits shareholders at this time. In addition, the Company hired Goldman, Sachs & Co. and agreed to pay it a The Board of Directors of Marietta Corporation March 7, 1995 Page 2 minimum of $1.5 million. I concur with Mr. Dickstein in questioning the wisdom of hiring Goldman, Sachs and agreeing to pay Goldman, Sachs what equates to 67% of the Company's earnings for the last four quarters and over 3% of the Company's net worth. Taken together these actions could lead one to conclude that the Company's Board of Directors is insensitive to the interests of shareholders and is merely taking steps to reduce the Company's attractiveness and financial options, to the detriment of shareholders. Given the recent conduct of the Board of Directors and its lack of an ownership interest in the Company, I believe it is apparent that this Board is unable or unwilling to deal with the Dickstein Proposal or other alternatives in a manner which will enhance shareholder value. I therefore demand that the Company immediately expand the Board of Directors to include representatives of substantial equity owners so that the Board, as reconsitituted, can consider the important issues facing the Company from the shareholders' perspective. I also demand that you set a date for your annual meeting of shareholders as soon as reasonably practicable. The failure of the Board to set such a meeting is simply another indication of the attempt by the Board to entrench itself. Sincerely, FLORESCUE FAMILY CORPORATION By: /s/ Barry Florescue Name: Barry Florescue Title: President EX-99.F 7 CONFIDENTIALITY AGREEMENT, DATED MAY 18, 1995 EXHIBIT F PERSONAL AND CONFIDENTIAL May 17, 1995 Florescue Family Corporation 701 Southeast 6th Avenue, Suite 204 Delray Beach, Florida 33483 Attention: Barry W. Florescue Gentlemen: In connection with your consideration of a possible transaction with Marietta Corporation (the "Company"), you have requested information concerning the Company. As a condition to your being furnished such information, you agree to treat any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to you by or on behalf of the Company (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter and to take or abstain from taking certain other actions herein set forth. The term "Evaluation Material" does not include information which (i) is already in your possession, provided that such information is not known by you to have been obtained in violation of another confidentiality agreement with or other obligation of secrecy to the Company or another party, (ii) becomes generally available to the public other than as a result of a disclosure by you or your directors, officers, employees, agents, lenders or advisors, or (iii) becomes available to you on a nonconfidential basis from a source other than the Company or its advisors, provided that such source is not known by you to be bound by a confidentiality agreement with or other obligation of secrecy to the Company or another party. You hereby agree that the Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Company and you, and that such information will be kept confidential by you and your advisors and institutional lenders; provided, however, that (i) any of such information may be disclosed to your directors, officers and employees and representatives of your advisors and lenders who need to know such information for the purpose of evaluating any such possible transaction between the Company and you (it being understood that such directors, officers, employees and representatives shall be informed by you of the confidential nature of such information and shall be directed by you to treat such information confidentially), (ii) any disclosure of such information may be made to which the Company consents in writing, (iii) any disclosure of such information may be made if, in the good faith opinion of outside counsel to the party making such disclosure, such disclosure is required by an order or other directive of a court or governmental body or agency requiring such disclosure, in which event you shall notify the Company in advance of such disclosure and cooperate with the Company's efforts to ensure the confidentiality of such information. You hereby acknowledge that you are aware, and that you will advise such directors, officers, employees and representatives who are informed as to the matters which are the subject of this letter, that the United States securities laws prohibit any person who has received from an Issuer material, non-public information concerning the matters which are the subject of this letter from purchasing or selling securities of such Issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. In addition, except as outside counsel may advise is required by law, without the prior written consent of the Company, you will not, and will direct such directors, officers, employees and representatives not to, disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between the Company and you or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof. Although the Company has endeavored to include in the Evaluation Material information known to it which it believes to be relevant for the purpose of your investigation, you understand that neither the Company nor any of its representatives or advisors have made or make any representation or warranty as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company nor its representatives or advisors 2 shall have any liability to you or any of your representatives, lender or advisors resulting from the use of the Evaluation Material. In the event that you do not proceed with the transaction which is the subject of this letter within a reasonable time, you shall promptly redeliver to the Company all written Evaluation Material and any other written material containing or reflecting any information in the Evaluation Material (whether prepared by the Company, its advisors or otherwise) and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever prepared by you or your advisors or lenders based on the information in the Evaluation Material shall be destroyed, and such destruction shall be certified in writing to the Company by an authorized officer supervising such destruction. You agree that unless and until a definitive agreement between the Company and you with respect to any transaction referred to in the first paragraph of this letter has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this or any written or oral expression with respect to such a transaction by any of its directors, officers, employees, agents or any other representatives or its advisors or representatives thereof except, in the case of this letter, for the matters specifically agreed to herein. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement. This letter shall be governed by, and construed in accordance with, the laws of the State of New York. Very truly yours, MARIETTA CORPORATION By: /s/ Goldman, Sachs & Co. -------------------------- Goldman, Sachs & Co. on behalf of Marietta Corporation 3 Confirmed and Agreed to: FLORESCUE FAMILY CORPORATION By: /s/ Barry Florescue, President ------------------------------- Barry Florescue, President 4 EX-99.G 8 LETTER, DATED MAY 18, 1995 EXHIBIT G DABNEY - ------- RESNICK INCORPORATED 150 SOUTH RODEO DRIVE, SUITE 100, BEVERLY HILLS, CA 90212 310-246-3700 800-929-2299 FAX 310-246-3794 May 22, 1995 Florescue Family Corporation 701 S.E. 6th Avenue Delray Beach, FL 33483 ATTN: Barry Florescue President Gentlemen: This letter confirms our understanding that Florescue Family Corporation (which together with its subsidiaries and affiliates is hereinafter referred to as the "Company") has engaged Dabney/Resnick, Inc. ("D/R") to act as exclusive financial advisor to the Company with respect to the possible acquisition of Marietta Corporation ("Marietta" or the "Target"), through a subsidiary to be formed for the purposes of an acquisition ("Newco"), in one or a series of transactions, by merger, consolidation or any other business combination, in one or a series of transactions, by purchase involving all or a substantial amount of the business, securities or assets of the Target, or any transaction which is structured to substantially achieve the same result (each a "Transaction"), and the private placement of (i) approximately $10.0 million of debt securities (the "Notes"), (ii) a revolving credit and term facility of approximately $35.0 million (the "Revolver and Term Facility"), (iii) approximately $4.0 million of equity securities (the "Equity") and (iv) warrants to purchase up to 15.0% of the issued and outstanding common stock of Newco, on a fully diluted basis (the "Warrants"; and together with the Notes, the Revolver and Term Facility and the Equity, the "Financing"). Section 1. Services to be Rendered. In connection with this engagement, D/R agrees to undertake certain services on your behalf including, to the extent requested by you: (i) assisting you in evaluating the Target; (ii) advising on a proposed purchase price and form of consideration; (iii) structuring a Transaction; and (iv) negotiating the financial aspects of any Transaction under your guidance. With respect to the proposed Financing, D/R's services to the Company will include: (i) assistance in the preparation of a private placement memorandum describing the Company and the Target, its operations, its historical performance and its future prospects (the "Offering Materials"); (ii) assistance in structuring the proposed Financing and its terms; (iii) identifying and contacting selected qualified purchasers (the "Purchasers") of the proposed Financing and furnishing them, on behalf of the Company with copies of the Offering Materials; and (iv) negotiating the financial aspects of the proposed Financing under your guidance. Nothing contained herein constitutes a commitment on the part of D/R to purchase any securities. The Company acknowledges and agrees that D/R has been retained solely to provide the advice or services set forth in this Agreement. D/R shall act as an independent contractor, and any duties of D/R arising out of its engagement hereunder shall be owed solely to the Company. As D/R will be acting on your behalf, the Company agrees to the indemnification and other obligations set forth in Schedule I attached hereto, which Schedule is an integral part hereof and incorporated by reference herein. Barry Florescue President Florescue Family Corporation May 22, 1995 Page 2 Section 2. Compensation. As compensation for services to be provided by D/R hereunder, Newco agrees to pay to D/R (i) a cash fee in an amount equal to 1.0% of the aggregate amount of consideration received by the Target and/or its shareholders (including the consideration paid with respect to the exercise or termination of options, warrants or other rights of conversion) and including in such consideration the amount of any debt securities assumed or preferred stock redeemed in connection with a Transaction, payable in cash promptly upon consummation of a Transaction; (ii) a cash fee equal to 4.0% of the principal amount of the Notes sold upon consummation of, and out of the proceeds of, the proposed Financing; (iii) a cash fee equal to 1.5% of the aggregate committed amount of the Revolver and Term Facility, less any such cash fee payable to the provider of the Revolver and Term Facility (provided that this fee shall not be less than zero), upon consummation of, and out of the proceeds of, the proposed Financing; (iv) a cash fee equal to 5.0% of the aggregate dollar amount of Equity sold upon consummation of, and out of the proceeds of, the proposed Financing; and (v) a warrant (in addition to, and on the same terms as, the Warrants) to purchase 5.0% of the issued and outstanding common stock of Newco on a fully diluted basis. Upon request by D/R from time to time, the Company agrees to reimburse D/R promptly for all out-of-pocket expenses (including without limitation all reasonable fees and expenses of counsel) incurred by D/R in connection with this engagement hereunder. Further, the Company will be responsible for all other expenses associated with the placement of the Financing, including, but not limited to, its own accounting and reasonable legal fees, printing and travel costs, and legal costs of the investors. Reimbursement of out-of-pocket expenses will be paid to D/R promptly by the Company whether or not the proposed Financing is consummated. D/R will be paid a cash deposit of $25,000 upon execution of this Agreement to be used to reimburse D/R for its out-of-pocket expenses and any unused amounts will be returned to the Company upon demand. In the event that the consideration in a Transaction is paid in whole or in part in the form of securities or other assets, the value of such securities or other assets, for the purposes of calculating D/R's fee, shall be the fair market value thereof, as the parties hereto shall mutually agree, on the day prior to the consummaton of the Transaction; provided that, if such consideration includes securities with an existing public trading market, the value thereof shall be determined by the last sales price for such securities on the last trading day thereof prior to such consummation. A Transaction shall be deemed to have been consummated upon the earliest of any of the following events to occur: (1) the acquisition of a majority of the outstanding common stock of the Target by the Company calculated on a fully diluted basis; provided, however, that the compensation to be paid in accordance with Section 2 with respect to this subparagraph (i) shall be paid pro rata based upon the number of shares of common stock of the Target then acquired; (ii) a merger or consolidation of the Target with or into the Company or an affliate of the Company; (iii) the acquisition by the Company of substantially all of the Target's assets; or (iv) in the case of any other Transaction, the consummation thereof. The proposed Financing shall be deemed to have been consummated upon the closing thereof. In the event that a letter of intent or a definitive agreement is reached between the Company and the Target, and the Company, for any reason, is paid a break-up fee, topping fee or any other termination fee, D/R will be entitled to and paid the lesser of (a) $250,000 or (b) 25.0% of said fee. Should a Transaction not occur subsequent to the executon of this Agreement and the Company sells, exchanges or otherwise disposes of some or all of its shares in Target, to an unaffiliated third party or in the open market (collectively, a "Sale"), or should Target consummate a transaction with another party or complete a restructuring, leveraged buyout, or similar transaction (collectively, a "Target Transaction"), the Company shall pay to D/R an amount equal to 10% of the Net Profit earned over $13.00 on each share sold or exchanged or otherwise disposed of; provided, however, that such payment, Barry Florescue President Florescue Family Corporation May 22, 1995 Page 3 if due, shall not be less than $50,000.00 (fifty thousand dollars and 00 cents) in the aggregate. For the purposes of this engagement, "Net Profit" is defined as the aggregate consideration received per share by the Company in a Sale or pursuant to a Target Transaction plus any dividends received and any expenses reimbursed, minus the following related cost items divided by the aggregate number of shares transferred in a Sale or pursuant to a Target Transaction by the Company: (i) the aggregate purchase price of Target common stock by the Company; (ii) legal fees and expenses incurred by the Company; (iii) all fees paid to D/R; (iv) interest costs actually paid by the Company on any borrowings utilized to purchase or carry the shares; (v) commitment and other financing fees paid to others, including senior lenders, and reimbursement for out-of-pocket expenses, if paid; (vi) Securities and Exchange Commission filing fees; and (vii) printer and printing charges. In the event that the consideration received in a Sale or Target Transaction is not all cash, the non-cash portion (including any common equity retained in a Target Transaction) shall be valued at its fair market value as of the date of receipt and any publicly traded common equity held by the Company following a Target Transaction shall be valued at its closing price on the first day of ex-dividend (or ex-transaction, as appropriate) trading. Section 3. Term of Engagement. This Agreement may be terminated by either party hereto upon 2 days of written notice. Upon any termination or expiration of this Agreement, D/R will be entitled to prompt payment of all fees accrued prior to such termination or expiration and reimbursement of all out-of-pocket expenses as described above. Sections 2, 3, 5, 6, 9 and 10 of this Agreement and the indemnity and other provisions contained in Schedule I will also remain operative and in full force and effect regardless of any termination or expiration of this Agreement. In addition, if at any time prior to 12 months after the termination or expiration of this Agreement the Company enters into a financing transaction or transactions relating to the Target with proposed Purchasers introduced to the Company by D/R, D/R, in addition to any fee and expense reimbursement otherwise owing pursuant to Section 2 of this Agreement, shall be entitled to payment in full of the compensation described in Section 2 of this Agreement with respect to such financing transaction or transactions. Without limitation to the foregoing paragraph, it is understood that if the Company completes a transaction in lieu of the proposed Financing for which an advisor or agent would customarily be entitled to compensation, D/R and the Company will in good faith mutually agree upon acceptable compensation for D/R. Section 4. Cooperation. The Company will furnish D/R with all financial and other information and data as D/R believes appropriate in connection with its activities on the Company's behalf, and shall provide D/R full access to its officer, director and professional advisors. In addition, the Company will be responsible for preparing Offering Materials relating to the proposed Financing. The Company authorizes D/R to transmit the Offering Materials to prospective Purchasers of the proposed Financing, and represents and warrants that, subject to the last sentence of this paragraph, the Offering Materials, at all times through the closing, will not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. The Company will promptly notify D/R if it learns of any material inaccuracy or misstatement in, or material omission from, any information theretofore delivered to D/R. The Company recognizes and confirms that D/R, in connection with performing its services hereunder, (i) will be relying without investigation upon all information that is available from public sources relating to the Target or supplied to it by or on behalf of the Company or its advisors, (ii) shall not Barry Florescue President Florescue Family Corporation May 22, 1995 Page 4 in any respect be responsible for the accuracy or completeness of, or have any obligation to verify, the same, (iii) will not conduct any appraisal of any assets of the Company and (iv) may require that the Offering Materials contain appropriate disclaimers consistent with the foregoing. Section 5. Confidentiality. The Company agrees that any advice, written or oral, provided by D/R pursuant to this Agreement will be treated by the Company as confidential, will be solely for the information and assistance of the Company in connection with its consideration of a transaction of the type referred to in Section 1 of this Agreement and will not, except as required by law, be used, circulated, quoted or otherwise referred to for any other purpose, nor will it be filed with, included in or referred to, in whole or in part, in any registration statement, proxy statement or any other communication, whether written (including, without limitation, the Offering Materials) or oral, prepared, issued or transmitted by the Company or any affiliate, director, officer, employee, agent or representative of any thereof, without, in each instance, D/R's prior consent, which consent shall not be unreasonably withheld. Further, in connection with this engagement of D/R,it is contemplated that the Company may supply to D/R certain non-public or proprietary information concerning the Company ("Confidential Information"). D/R shall use Confidential Information solely for the purposes of rendering services pursuant to and in accordance with this engagement and shall not, without the prior written consent of the Company, disclose any Confidential Information to any person, other than its officers, directors, employees and outside advisors with a need to know; provided, however, that the foregoing shall not apply to any information which becomes publicly available other than as a result of the breach of D/R's undertakings hereunder, or that which D/R is required to disclose by judicial or administrative process in connection with any action, suit, proceeding or claim. Section 6. Conflicts. The Company acknowledges that D/R and its affiliates may have and may continue to have investment banking and other relationships with parties other than the Company pursuant to which D/R may acquire information of interest to the Company. D/R shall have no obligation to disclose such information to the Company, or to use such information in connection with any contemplated transaction. No one other than the Company is authorized to rely upon the engagement of D/R hereunder or any statements, advice, opinions or conduct by D/R. Section 7. Exclusivity. The Company agrees that no other financial advisor is or will be authorized by it during the term of this Agreement to perform services on its behalf of the type which D/R is authorized to perform hereunder. No fee payable to any other financial advisor either by the Company or any other entity shall reduce or otherwise affect the fees payable hereunder to D/R. Section 8. Public Announcements. D/R shall have the right to place announcements and advertisements in financial and other newspapers and journals, at its own expense, describing its services in connection with the Financing, provided that D/R obtains the Company's prior written consent, which consent will not be unreasonably withheld. Section 9. Complete Agreement; Severability; Amendments; Assignment. This Agreement embodies the entire agreement and understanding between the parties hereto and supersedes any prior agreements and understandings relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by both D/R and the Company. This Agreement may not be assigned by either party without the prior written consent of the other party. Barry Florescue President Florescue Family Corporation May 22, 1995 Page 5 This Agreement shall be binding upon and inure to the benefit of the Company, D/R, each Indemnified Person (as defined in Schedule I hereto) and their respective successors and assigns. Section 10. Governing Law; Forum. This Agreement will be governed by, and construed in accordance with, the laws of the state of Florida applicable to agreements made and to be performed entirely in such state. Each of the Company and D/R agree that any action or proceeding based hereon, or arising out of D/R's engagement hereunder, shall be brought and maintained exclusively in the courts of the state of Florida or in the United States District Court for the District of Florida. The Company and D/R each hereby irrevocably submit to the jurisdiction of the courts of the state of Florida and of the United States District Court for the District of Florida for the purpose of any such action or proceeding as set forth above and irrevocably agree to be bound by any judgment rendered thereby in connection with such action or proceeding. Each of the Company and D/R hereby irrevocably waive, to the fullest extent permitted by law, any objection which it may have or hereafter may have to the laying of venue of any such action or proceeding brought in any such court referred to above and any claim that any such action or proceeding has been brought in an inconvenient forum. The Company (for itself, anyone claiming through it or its name, and on behalf of its equity holders) and D/R each hereby irrevocably waive any right they may have to a trial by jury in respect to any claim based upon or arising out of this Agreement or the proposed Financing contemplated hereby. Please confirm that the foregoing correctly sets forth our agreement by signing and returning to D/R the enclosed original copy of this Agreement. Very truly yours, DABNEY/RESNICK, INC. By: /s/ Richard Bloom ---------------------------- Richard Bloom Senior Vice President Accepted as of the date written above. FLORESCUE FAMILY CORPORATION By: /s/ Barry Florescue ------------------------- Barry Florescue President Barry Florescue President Florescue Family Corporation May 22, 1995 Page 6 Schedule I This Schedule I is a part of and is incorporated into that certain letter agreement (together, the "Agreement") dated May 22, 1995 by and between Florescue Family Corporation (the "Company") and Dabney/Resnick, Inc. ("D/R"). This letter will confirm that the Company agrees to indemnify and hold harmless Dabney/Resnick, Inc., ("D/R") and its affiliates, the respective directors, officers, attorneys and other agents, stockholders and employees of D/R and its affiliates and each other person, if any, controlling D/R or any of its affiliates (D/R and each such person and entity being referred to as an "Indemnified Person"), to the full extent lawful, from and against any losses, claims, damages or liabilities or actions (including without limitation shareholder actions and actions arising from the use of information contained in the Offering Materials or omissions from such materials) relating to or arising out of this engagement or D/R's role in connection herewith, and will pay (or, if paid by an Indemnified Person, reimburse such Indemnified Person) for all fees and expenses (including without limitation counsel fees) incurred by such Indemnified Person in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation in which any Indemnified Person is a party. The Company will not, however, be responsible for any claims, liabilities, losses, damages or expenses which result from any compromise or settlement not approved by the Company or which result primarily from the fraud, willful misconduct or gross negligence of any Indemnified Person. The Company also agrees that no Indemnified Person shall have any liability to the Company for or in connection with this engagement, except for any such liability for losses, claims, damages, liabilities or expenses incurred by the Company that result from the fraud, willful misconduct or gross negligence of the Indemnified Person. The foregoing agreement shall be in addition to any rights that any Indemnified Person may have at common law or otherwise, including without limitation any right to contribution. Except as required by law, the Company's agreement to indemnify D/R and other Indemnified Persons pursuant to this letter shall not be disclosed publicly or made available to third parties by either party hereto without the other party's prior written consent. If any action or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against the Company pursuant hereto, or if any Indemnified Person receives notice from any potential litigant or a claim which such person reasonably believes will result in the commencement of any such action or proceeding, such Indemnified Person shall promptly notify the Company in writing of the commencement of such action or proceeding, or of the existence of any such claim, but the failure so to notify the Company of any such action or proceeding shall not relieve the Company from any other obligation or liability which it may have to any Indemnified Person otherwise than under this Agreement or with respect to any other action or proceeding except where the failure to so notify the Company results in a forfeiture of substantial rights by the Company. In case any such action or proceeding shall be brought against any Indemnified Person, the Company shall be entitled to participate in such action or proceeding with counsel of the Company's choice, or compromise or settle such action or proceeding, at its expense (in which case the Company shall not thereafter be responsible for the fees and expenses of any separate counsel retained by such Indemnified Person); provided, however, that such counsel shall be satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the Company's election to assume the defense of such action or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such action or proceeding, and the Company shall bear the reasonable fees, costs and expenses of such separate counsel provided, that the Company shall not be responsible for the payment of fees, costs and expenses of more than one firm of attorneys (in addition to local counsel) and shall pay such fees, costs and expenses at least quarterly, if (a) the use of counsel chosen by the Company to represent such Barry Florescue President Florescue Family Corporation May 22, 1995 Page 7 Indemnified Person would, in the judgment of the Indemnified Person, present such counsel with a conflict of interest; (b) the defendants in, or targets of, any such action or proceeding include both an Indemnified Person and the Company, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Persons which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action or proceeding on behalf of the Indemnified Person); (c) the Company shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such action or proceeding; or (d) the Company shall authorize such Indemnified Person to employ separate counsel at the Company's expense. In order to provide for the just and equitable contribution, if a claim for indemnification hereunder is found unenforceable in a final judgment by a court of competent jurisdiction (not subject to further appeal), even though the express provisions hereof provide for indemnification in such case, then the Company and D/R shall contribute to the losses, claims, damages, judgments, liability or costs to which the Indemnified Person may be subject in accordance with the relative benefits received by, and the relative fault of, each in connection with the statements, acts or omissions which resulted in such losses, claims, damages, judgments, liabilities, or costs. No person found liable for a fraudulent misrepresentation or omission shall be entitled to contribution from any person who is not also found liable for such fraudulent misrepresentation or omission. Notwithstanding the foregoing, D/R shall not be obligated to contribute to any amount hereunder that exceeds the amount of fees previously received by D/R for its services to the Company. These indemnification provisions shall (i) remain operative and in full force and effect regardless of any termination or completion of the engagement of D/R; (ii) inure to the benefit of any successors, assigns, heirs or personal representative of any Indemnified Person; and (iii) be in addition to any other rights that any Indemnified Person may have. -----END PRIVACY-ENHANCED MESSAGE-----