Exhibit 10(u)
FIFTH AMENDMENT TO SELLING AGENT AGREEMENT
The purpose of this document is to amend the Selling Agent Agreement dated
June 1, 1990 between IDS Financial Services Inc. (the "Company" and now
known as Ameriprise Financial Services, Inc. ("AFSI")) and American
Express Bank International ("AEBI"), as subsequently amended (the "Selling
Agent Agreement").
Unless specifically stated to the contrary, the terms of this Amendment are
retroactive to the initial effective date of the Selling Agent Agreement on
June 1, 1990, as they clarify the respective responsibilities and
obligations the Parties (i.e., AFSI and AEBI) and IDS Certificate Company
(the "Issuer" and now known as Ameriprise Certificate Company) have
undertaken since that date.
Terms used in this Amendment have the same meaning as they do in the Selling
Agent Agreement.
1. Effective October 1, 2005, Ameriprise Certificate Company will
replace IDS Certificate Company in the text of the Selling Agent
Agreement in recognition of the current name of such organization.
2. Section I of the Selling Agent Agreement is amended to add
subsection 4.1, which states as follows:
(4.1) Effective Xxxxxxx 0, 0000, XXXX will no longer market or offer
Certificates, and the Issuer and the Company will no longer accept
new applications for Certificates from AEBI. However, the terms of
this Agreement will continue to be in effect with respect to
Certificates marketed and offered prior to that date.
3. Sections I(3), I(6), I(8), IV(6), V(2), and other applicable Sections
of the Selling Agent Agreement are read together to provide that the
Company and the Issuer have and will continue to ensure that the
registration of products on the official transfer agent records of the
Issuer accurately reflects the instructions for such registrations that
have been provided by AEBI. In this regard, AEBI has been and continues
to be responsible for ensuring that such instructions are accurate,
complete and lawful. The Indemnification provisions of Section V of the
Selling Agent Agreement are applicable to the Parties' respective
obligations in this regard.
4. Section I(7) of the Selling Agent Agreement is amended to add the
following provisions to the end of the Section:
Effective January 1, 2005, with respect to AEBI's obligations to:
i) obtain and maintain current Forms W-8BEN (or any other form
required by U.S. Treasury Department regulations) for all clients
in compliance with applicable laws and regulations; and ii)
deliver Forms 1042-S to clients, AEBI will act as the "withholding
agent," as defined in U.S. Treasury Regulation 1.1441-7(a), with
all
attendant responsibilities and obligations. AEBI will
indemnify the Company and the Issuer in accordance with
Section V of the Selling Agent Agreement for any claim
brought in accordance with such Section V arising from the
failure of AEB to perform its obligations hereunder. The
Company will, and the Company will cause the Issuer to,
provide such information to AEBI as necessary for AEBI to
act as withholding agent and comply with applicable laws and
regulations.
5. Section V of the Selling Agent Agreement is amended to add
subsection V(4) which states as follows:
(4) The Parties to this Agreement are solely responsible for any
failure to satisfy their obligations under this Agreement.
Such responsibility includes any regulatory penalty or fine
and/or any liability arising from a civil or criminal
action, or settlement thereof, including but not limited to
compensation or remediation to clients, arising from any
such failure to satisfy such obligations. The Parties'
indemnification obligations and right to receive
indemnification will survive the termination of the
Agreement for the time period relating to all applicable
statutes of limitation, unless subsequently agreed to in
writing by the Parties.
6. Section VI(5) of the Selling Agent Agreement is amended as follows:
Any notice, under this Agreement shall be given in writing,
by electronic mail or addressed and delivered or mailed
postpaid to the Party to this Agreement entitled to receive
the same,
i. If to Company, Xxxxx X. Xxxxx, 000 Xxxxxxxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000,
xxxxx.x.xxxxx@xxxx.xxx; and
ii. If to XXXX, Xxxx Xxx Xxxxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
xxxxxxx.x.xxxxxxxxxx@xxxx.xxx.
7. Section VIII titled "ARBITRATION" is added to the Selling Agent
Agreement to read as follows:
(1) The Parties also understand and agree that if they are
unable to resolve any issue under the Selling Agent
Agreement or this Amendment, such dispute will be resolved
through arbitration within the following parameters:
a. Arbitration is final and binding on the Parties;
i. The Parties reserve the right to seek injunctive
relief in a court of competent jurisdiction, but
waive any other right to seek remedies in court,
including the right to jury trial;
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ii. Pre-arbitration discovery is generally more
limited than, and different from, court
proceedings;
iii. 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; and
iv. The panel of arbitrators will typically include
a minority of arbitrators who were or are
affiliated with the securities industry.
(2) Any controversy arising out of, or relating to Products distributed
under the Selling Agent Agreement or this Amendment shall be
settled by arbitration and conducted pursuant to the Federal
Arbitration Act before the American Arbitration Association or
the independent non-industry arbitration forum as the Parties
may agree. If the Parties cannot agree on the Forum, the American
Arbitration Association shall be selected. Judgment upon any award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(3) Forbearance to enforce this agreement to arbitrate shall not
constitute a waiver of any rights under the Selling Agent
Agreement or this Amendment.
8. Schedule A of the Selling Agent Agreement, which sets out the compensation
rates for Investors Certificates, is amended as follows:
A. Effective October 1, 2005, Section 2(i) of Schedule A is amended
to read:
(i) For the period October 1, 2005 through December 31, 2005,
for Certificates sold on or after June 1, 1990:
a. For Certificates sold in an amount equal to $1 million
or more, a fee equal to .35% per annum of the amount
outstanding for each Certificate;
b. For Certificates sold in an amount from $500,000 to
$999,999, a fee equal to .50% per annum of the amount
outstanding for each Certificate;
c. For Certificates sold in an amount from $250,000 to
$499,999, a fee equal to .65% per annum of the amount
outstanding for each Certificate;
d. For Certificates sold in an amount from $100,000 to
$249,000, a fee equal to 1.1% per annum of the amount
outstanding for each Certificate; and
e. For Investors Select certificates, a fee equal to .25%
per annum of the amount outstanding.
B. Effective January 1, 2006, Section 2(i) of Schedule A is amended
to read:
(i) Effective January 1, 2006, for Certificates sold on or after
June 1, 1990:
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a. For Certificates sold in an amount equal to $1 million
or more, a fee equal to .30% per annum of the amount
outstanding for each Certificate;
b. For Certificates sold in an amount from $500,000 to
$999,999, a fee equal to .45% per annum of the amount
outstanding for each Certificate;
c. For Certificates sold in an amount from $250,000 to
$499,999, a fee equal to .60% per annum of the amount
outstanding for each Certificate;
d. For Certificates sold in an amount from $100,000 to
$249,000, a fee equal to 1.05% per annum of the amount
outstanding for each Certificate; and
e. For Investors Select Certificates, a fee equal to .25%
per annum of the amount outstanding.
9. Schedule B of the Selling Agent Agreement, which sets out the
compensation rates for Stock Market Certificates ("Market Certificates"),
remains in effect, with fees of 1.00% per term of the principal
amount of each Market Certificate.
10. Section IX titled "CONFIDENTIALITY/DATA SECURITY" is added to the
Selling Agent Agreement to read as follows:
As used herein, Confidential Information, includes but is not limited to all
proprietary information of AEBI and its customers including without
limitation, the accounts, account numbers, names, addresses, social security
numbers or other personal identifier of such customers and any information
derived therefrom.
a. AFSI agrees not to use or disclose Confidential Information for any
purpose other than to carry out the purpose for which the Confidential
Information was provided to it; and agrees to cause all of its
employees, agents, representatives, or any other party to whom AFSI may
provide access to or disclose Confidential Information to limit the use
and disclosure of Confidential Information to that purpose.
b. AFSI agrees to implement appropriate measures designed to ensure the
security and confidentiality of Confidential Information; to protect
such information against any anticipated threats or hazards to the
security or integrity of such information; and to protect against
unauthorized access to, or use of, Confidential Information that could
result in substantial harm or inconvenience to any customer of AEBI;
c. AFSI further agrees to cause its agents, representatives, subcontractors,
or any other party to whom it may provide access to or disclose
Confidential Information to implement appropriate measures designed
to meet the objectives set forth in this Amendment.
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d. AFSI agrees to provide AEBI with copies of audits and test result
information sufficient to assure AEBI that AFSI has implemented
information security measures consistent with this Amendment.
e. AFSI agrees not to, directly or indirectly, contact, solicit,
encourage, entice away any client of AEBI whose name and personal
information was made known to AFSI as a result of AEBI's activities
under the Selling Agent Agreement.
The obligations hereunder shall not apply to Confidential Information to the
extent such information (i) is or becomes published or otherwise generally
available to the public through no wrongful act of AFSI, (ii) is information
which AFSI can show was properly in its possession prior to receipt from
AEBI, (iii) is or becomes available to AFSI from a source other than
AEBI having no obligation of nondisclosure with respect thereto, (iv) is
information which AFSI can show was independently developed by AFSI, (v) is
required by law to be disclosed, provided, however, that AFSI shall make
reasonable efforts to have confidential treatment accorded to the
Confidential Information and, to the extent permitted by law, shall make
reasonable efforts to notify AEBI as appropriate prior to disclosure thereof,
or (vi) is requested by any regulator, including any self-regulatory
organization of which AFSI is a member, to be disclosed, provided, however,
that AFSI will take reasonable steps to notify the regulator of the
confidential nature of the Confidential Information.
11. Section X entitled "Non-Solicitation/Right of First Refusal" is added
to the Selling Agent Agreement to read as follows:
If during the three-year period beginning October 1, 2005, AFSI proposes to
enter into an arrangement with a financial institution (other than AEBI)
to distribute certificates to clients who are non-U.S. Persons, AFSI shall
deliver to AEBI a written notice ("Offer Notice") detailing the terms and
conditions of such arrangement and including the name of the institution
arrangement. The parties shall have (60) days from the receipt of the
Offer Notice (the "Notice Period") to negotiate in good faith and enter
into a written agreement that incorporates no less than the terms and
conditions detailed in the Offer Notice. If after the expiration of such
sixty (60) day period AEBI has failed to enter into an agreement with AFSI
or to agree with AFSI to extend the 60 day period, then AFSI shall be free
to enter into an arrangement with such other financial institution.
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The effective date of this Amendment is October 1, 2005 and the Amendment
may be executed in counterparts.
AMERIPRISE FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx
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Its: President
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Date: 10/1/05
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AMERICAN EXPRESS BANK INTERNATIONAL.
By:
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Its:
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Date:
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The effective date of this Amendment is October 1, 2005 and the Amendment
may be executed in counterparts.
AMERIPRISE FINANCIAL SERVICES, INC.
By:
-----------------------------
Its:
-----------------------------
Date:
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AMERICAN EXPRESS BANK INTERNATIONAL.
By: /s/
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Its: Senior Director and Chief
Administrative Officer
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Date: 9/30/05
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