Exhibit 10(k)
MARKETING AGREEMENT
OF
WILMINGTON TRUST FSB
AND
X X XXXXXXX FINANCIAL SERVICES, INC.
MARKETING AGREEMENT
OF
WILMINGTON TRUST FSB
AND
X X XXXXXXX FINANCIAL SERVICES, INC.
This Marketing Agreement is entered into by and between
Wilmington Trust FSB ("WT") and XX Xxxxxxx Financial Services,
Inc. ("JWC") as of the 19th day of January, 1996.
WHEREAS, WT is in the business of providing a variety of
services, including, but not limited to, precious metals,
fiduciary, mutual fund, banking, trust and investment services
(the "Products and Services");
WHEREAS, JWC has certain customers to whom WT would like to
offer Products and Services; and
WHEREAS, the parties desire to enter into an agreement
whereby JWC will refer the Products and Services to certain of
its customers;
NOW THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
the sufficiency and adequacy of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I
---------
Duties
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1.1 WT warrants that it is and will continue to be
appropriately licensed and authorized to provide the types of
services anticipated by this agreement as required.
1.2 JWC warrants that it is and will continue to be
appropriately licensed to sell its products in those states where
it is required to be licensed.
1.3 JWC's referral duties hereunder may include, but
not be limited to, introducing appropriate personnel and services
to prospects for the purpose of providing investment management
and personal trust services. In connection with these
responsibilities, JWC agrees that prior to any such introductions
it will screen such prospective customers for the purpose of
assuring their suitability for referral.
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1.4 Upon request, from time to time by WT, JWC will
provide WT with reasonable access to its broker network, allowing
the staff of WT and its affiliates to call on these brokers.
1.5 JWC will use commercially reasonable efforts to
introduce the Products and Services of WT to its brokers.
1.6 WT shall provide JWC and its brokers with written
information and materials pertaining to WT Products and Services
and JWC agrees to describe any WT Products and Services
consistent with such information and materials in any discussions
with their customers.
1.7 JWC will immediately notify WT if any JWC customer
complains about any aspect of services being provided by WT or
its affiliates to such customers.
ARTICLE II
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Compensation and Reports
------------------------
2.1 The parties will agree from time to time
concerning compensation to be paid by WT to JWC for each referral
of Products and Services hereunder. All payments by WT hereunder
will be made to JWC as soon as reasonably practical, not to any
individual broker.
2.2 Not less often than quarterly, WT shall supply JWC
with a written report reporting the total Products and Services
sold for such period and year to date, broken down by type,
customer and compensation due to JWC related thereto. During the
term of this Agreement and for 90 days after any expiration or
termination, WT shall maintain detailed, current, written books
and records of all of the Products and Services provided and
sold, broken down by type, customer and compensation due to JWC
hereunder. WT shall provide JWC and its authorized
representatives full access during normal business hours to such
books and records.
ARTICLE III
-----------
Confidentiality and Non-Solicitation
------------------------------------
3.1 (a) In connection with this Agreement, a party
hereto (the "Disclosing Party") may disclose Confidential
Information, as defined below, to the other party hereto (the
"Disclosee"). Each party agrees to maintain the
confidentiality of any and all Confidential Information of a
Disclosing Party and agrees not to use such Confidential
Information for financial gain in any manner adverse to the
Disclosing Party, provided, however, the forgoing obligations
shall not apply to (i) any information which was known by the
Disclosee prior to its disclosure by the Disclosing Party; (ii)
any information which was in the public domain prior to its
disclosure; (iii) any information which comes into the public
domain through no fault of the Disclosee; (iv) any information
which is disclosed to the Disclosee by a third party, other than
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an affiliate, having the legal right to make such disclosure; or
(v) any information which is required to be disclosed by an order
of any forum. For the purposes of this Section, "Confidential
Information" shall mean any and all technical, business or other
information which (a) is possessed or hereafter acquired by a
Disclosing Party and disclosed to the Disclosee, and (b) derives
actual or potential economic value from not being generally known
to persons or entities other than the Disclosing Party,
including, but not limited to, data, compositions, devices,
methods, techniques, inventions, processes, financial data,
financial plans, product plans, business plans, or potential
customers and brokers, information with respect to various needs
of customers of JWC, provided that it shall not include
information that does not constitute a trade secret after the
fourth anniversary of any expiration or termination of this
Agreement.
3.2 WT agrees not to, directly or indirectly, for or
on behalf of any person or entity, solicit, call upon or attempt
to solicit the patronage of any customer of JWC that WT knows is
a customer of JWC, for the purpose of obtaining the patronage of
any such person for products and services other than Products and
Services. However, JWC recognizes that any person who becomes a
customer of WT or its affiliates will routinely receive sales and
promotional materials aimed at cross-selling WT services or the
services of its affiliates to that customer.
3.3 WT agrees not to, directly or indirectly, for or
on the behalf of any person, solicit or induce, or attempt to
solicit or induce, any person employed by JWC to leave such
employment. However, such prohibition shall not prevent WT from
considering the unsolicited employment application of any JWC
employee. JWC agrees not to, directly or indirectly, for or on
the behalf of any person, solicit or induce, or attempt to
solicit or induce, any person employed by WT to leave such
employment. However, such prohibition shall not prevent JWC from
considering the unsolicited employment application of any WT
employee.
ARTICLE IV
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Indemnification and Standard of Performance
-------------------------------------------
4.1 WT shall use its commercially reasonable best
efforts to perform its obligations hereunder and shall indemnify
and hold harmless JWC, its directors, officers, employees and
agents from and against any claims, demands, actions,
liabilities, penalties, taxes, losses or costs (including
reasonable attorneys fees) to which JWC or its directors,
officers, employees and agents may become subject which arise out
of WT's breach of the terms of this Agreement.
4.2 JWC shall use their commercially reasonable best
efforts to perform all JWC obligations hereunder and shall
indemnify and hold harmless WT and its affiliates and their
directors, officers, employees and agents from and against any
claims, demands, actions, liabilities, penalties, taxes, losses
or costs to which WT or its affiliates or their directors,
officers, employees and agents may become subject which arise out
of JWC's breach of the terms of this Agreement.
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4.3 Each party agrees to perform its services
hereunder in accordance with the professional standards
recognized by their respective industries, whichever standard is
appropriate for the circumstances, and in accordance with all
applicable laws and regulations.
4.4 No provision of this Agreement shall be construed
to require WT to provide services to any customers that are
introduced to it pursuant to the terms hereof. No provision of
this Agreement shall be construed to require JWC to refer all of
its customers to WT pursuant to the terms hereof.
ARTICLE V
---------
Non-Exclusivity
---------------
5.1 Except as otherwise provided in Article III
hereof, no provision of this Agreement shall be construed to
limit the activities or business which either JWC or WT may carry
out or engage in outside of this Agreement and this Agreement is
not intended to create any exclusive arrangement between the
parties hereto.
ARTICLE VI
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Term
----
6.1 This Agreement shall be effective as of the date
hereof.
6.2 This Agreement shall be in force until December
31, 2002 unless otherwise terminated in accordance with he terms
hereof. This Agreement shall renew automatically for successive
one year terms unless terminated hereunder. This Agreement may be
terminated by either party upon thirty (30) days written notice
to the other. Each party shall have the right to terminate this
Agreement immediately if the other party files a petition in
bankruptcy, makes an assignment for the benefit of creditors, is
voluntarily or involuntarily adjudicated bankrupt, or if a
receiver is appointed for its business or assets. The payment of
compensation described by Article II, the confidentiality
provisions of Article III and the indemnification provisions of
Article IV shall survive any such termination or expiration under
this Agreement.
ARTICLE VII
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Annual Meeting
--------------
7.1 The parties hereto agree to meet annually at a
place and time agreed upon by the parties. The purpose of this
meeting shall be to review business plans, budgets and the
progress of this Agreement and to discuss any modifications to
this Agreement that either party believes is necessary. Ten (10)
days before the scheduled meeting, each party shall notify the
other in writing of issues that it wishes to discuss at the
meeting.
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ARTICLE VIII
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Insurance
---------
8.1 Each party agrees to maintain its own adequate
Errors and Omissions Insurance. Each party agrees to provide the
other with a certificate of insurance outlining its insurance
coverage upon request by the other party. Each party also agrees
to notify the other of any material change to its insurance
coverage.
ARTICLE IX
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WT Warranties
-------------
9.1 WT and its affiliates are not currently subject to
any judicial or administrative proceedings that would impair WT's
ability to perform its duties hereunder. WT will promptly notify
JWC if it or one of its affiliates becomes subject to such
proceedings.
9.2 WT warrants that it will not intentionally mislead
any of its customers about the nature of any JWC product.
ARTICLE X
---------
JWC Warranties
--------------
10.1 JWC and its affiliates are not currently subject
to any judicial or administrative proceedings that would impair
JWC's ability to perform its duties hereunder. JWC will promptly
notify WT if it or one of its affiliates becomes subject to such
proceedings.
10.2 JWC warrants that it will not intentionally
mislead any of its customers about the nature of any WT product.
ARTICLE XI
----------
General Terms
-------------
11.1 Neither this Agreement nor any of its terms may
be terminated, amended, supplemented, waived, or modified orally,
but only by an instrument in writing signed by the party against
which the enforcement of the termination, amendment, supplement,
waiver, or modification is sought. The headings or the various
sections of this Agreement are for reference only and shall not
modify, expand or limit any of the terms or provisions hereof.
11.2 Neither WT nor JWC shall assign, convey, or
otherwise transfer any of its right, title or interest in this
Agreement.
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11.3 This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of
Delaware. Furthermore, the parties agree that jurisdiction and
venue for any action arising under this Agreement shall be
exclusively with the state or federal courts located in Delaware.
Each party agrees to waive its right to jury trial in any action
arising out of this Agreement. In the event of any dispute
between the parties under this Agreement, the parties agree to
submit such dispute to an arbitrator for binding arbitration.
Such arbitrator shall be a member of the American Arbitration
Association and the arbitration proceedings shall be conducted in
Washington, D.C. and governed by the rules of that Association.
11.4 This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one of the same instrument.
11.5 All notices required or permitted by the terms
hereof shall be in writing, and any such notices shall become
effective when hand delivered to the other party, or, if in the
form of a telegram or telex, when received. All notices shall be
delivered or addressed as follows: (1) if to WT:
Wilmington Trust FSB
Xxxxx 000
000 XX Xxxxxxxx Xxxxxxx Xxxx.
Xxxxxx, Xxxxxxx 00000
ATTENTION: Mr. W. Xxxxx Xxxxxxxx
(2) if to JWC:
X X Xxxxxxx Financial Services, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 000X
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
and
W. Xxxxx Xxxxx
Xxxxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Each party may from time to time change its address by written
notice to the other.
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11.6 Neither party will use the name of the other party
in any promotional or advertising material without the written
consent of the other party.
11.7 JWC and its employees are not employees, agents or
authorized representatives of WT hereunder. WT and its employees
are not employees, agents or authorized representatives of JWC
hereunder. Each party is an independent contractor under this
Agreement and both parties agree that they will not represent
themselves to be agents of the other. Neither party has the
power to contractually obligate the other party.
11.8 The failure of one party to insist upon or enforce
strict performance of any terms of this Agreement shall not be
construed as a waiver of its right to enforce such terms in the
future.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE
EXECUTED BY THEIR DULY AUTHORIZED OFFICERS.
WILMINGTON TRUST FSB
By:/s/ Xxxxxx _______, IV (Seal)
Title: Chairman
Date: 1/19/96
XX XXXXXXX FINANCIAL SERVICES, INC.
By: Xxxx Xxxxx (Seal)
Title: Vice Chairman
Date: 1/19/96
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