Exhibit 10(t)
AMENDMENT TO MARKETING AGREEMENT
The purpose of this document is to amend the Marketing Agreement dated
October 10, 1991 between IDS Certificate Company (now known as Ameriprise
Certificate Company ("ACC")) and American Express Bank Ltd. ("AEB"), as
subsequently amended (the "Marketing Agreement").
Unless specifically stated to the contrary, the terms of this Amendment are
retroactive to the initial effective date of the Marketing Agreement on
October 10, 1991, as they clarify the respective responsibilities and
obligations the Parties (i.e., ACC and AEB) have undertaken since that date.
Terms used in this Amendment have the same meaning as they do in the Marketing
Agreement.
1. Effective October 1, 2005, Ameriprise Certificate Company will
replace IDS Certificate Company in the text of the Marketing
Agreement in recognition of the current name of such organization.
2. Section I of the Marketing Agreement is amended to add subsection 4.1,
which states as follows:
(4.1) Effective October 1, 2005, AEB will no longer market or offer
Products, and ACC will no longer accept new applications for
Products. However, the terms of this Agreement will continue
to be in effect with respect to Products 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 Marketing Agreement are read together to provide that ACC
has and will continue to ensure that the registration of products on
the official transfer agent records of ACC accurately reflects the
instructions for such registrations that have been provided by AEB.
In this regard, AEB 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 Marketing Agreement
are applicable to the Parties' respective obligations in this regard.
4. Section I(7) of the Marketing Agreement is amended to add the
following provisions to the end of the Section:
Effective January 1, 2005, with respect to AEB'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,
AEB will act as the "withholding agent," as defined in U.S. Treasury
Regulation 1.1441-7(a), with all attendant responsibilities and obligations.
AEB will indemnify ACC in accordance with Section V of the Marketing
Agreement for any claim brought in accordance with such Section V arising
from the failure of AEB to
perform its obligations hereunder. ACC will provide such information to AEB
as is necessary for AEB to act as the withholding agent and comply with
applicable laws and regulations. AEB's United Kingdom branch will provide
ACC with a Form W-8IMY certifying it is a qualified intermediary that has
assumed primary responsibility for US tax withholding and reporting. ACC shall
provide to such branch Forms 1042S with withholding rate pool reporting
rather than Forms 1042S for each client.
5. Section V of the Marketing 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 Marketing 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 AEB, Xxxx Xxx Xxxxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
xxxxxxx.x.xxxxxxxxxx@xxxx.xxx.
7. Section VIII titled "ARBITRATION" is added to the Marketing Agreement
to read as follows:
(2) The Parties also understand and agree that if they are unable to
resolve any issue under the Agreement or this Letter, 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.
(3) Any controversy arising out of, or relating to Products distributed
under the Marketing Agreement 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.
(4) Forbearance to enforce an agreement to arbitrate shall not
constitute a waiver of any rights under this agreement.
8. Schedule A of the Marketing Agreement is amended as follows:
a. Effective October 1, 2005, the compensation rates provided in
Sections 2(a),(b),(c) and (d) of both Schedule A and Schedule B
will be .35% per annum, .50% per annum, .65% per annum and 1.1% per
annum, respectively.
b. Effective January 1, 2006, the compensation rates provided in
Sections 2(a),(b),(c) and (d) of both Schedule A and Schedule B
will be .30% per annum, .45% per annum, .60% per annum and 1.05% per
annum, respectively.
9. Schedule B of the Marketing Agreement is eliminated.
10. Section IX titled "CONFIDENTIALITY/DATA SECURITY" is added to the
Marketing Agreement to read as follows:
As used herein, Confidential Information, includes but is not limited to all
proprietary information of AEB 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. ACC 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 ACC may
provide access to or disclose Confidential Information to limit the use
and disclosure of Confidential Information to that purpose.
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b. ACC 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 AEB;
c. ACC 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.
d. ACC agrees to provide AEB with copies of audits and test result
information sufficient to assure AEB that ACC has implemented
information security measures consistent with this Amendment.
e. ACC agrees not to, directly or indirectly, contact, solicit,
encourage, entice away any client of AEB whose name and personal
information was made known to ACC as a result of AEB's activities
under the Marketing 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 ACC, (ii) is information
which ACC can show was properly in its possession prior to receipt from
AEB, (iii) is or becomes available to ACC from a source other than
AEB having no obligation of nondisclosure with respect thereto, (iv) is
information which ACC can show was independently developed by ACC, (v) is
required by law to be disclosed, provided, however, that ACC 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 AEB as appropriate prior to disclosure thereof,
or (vi) is requested by any regulator, including any self-regulatory
organization of which ACC is a member, to be disclosed, provided, however,
that ACC 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 Marketing Agreement to read as follows:
If during the three-year period beginning October 1, 2005, ACC proposes to
enter into an arrangement with a financial institution (other than AEB)
to distribute certificates to clients who are non-U.S. Persons, ACC shall
deliver to AEB 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 AEB has failed to enter into an agreement with ACC
or to agree with ACC to extend the 60 day period, then ACC 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 CERTIFICATE COMPANY
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 LTD.
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 CERTIFICATE COMPANY
By:
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Its:
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Date:
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AMERICAN EXPRESS BANK LTD.
By: /s/
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Its: Vice Chairman
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Date: 9/30/05
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