Ex. 99-B.8.35
Administrative and Shareholder Services Agreement
This Agreement is made as of the1st day of April, 2001, by and between ING Funds
Services, LLC (the "Administrator") and ING Insurance Company of America
("Company"), collectively, the "Parties."
WHEREAS, the Administrator serves as the Administrator for ING Variable Products
Trust ("Trust") which currently consists of 16 separate series (the
"Portfolios"); and
WHEREAS, the Company has entered into a Participation Agreement, dated
April 1st , 2001, with the Trust (a "Participation Agreement") pursuant to which
the Trust will make shares of each Portfolio listed from time to time on
Schedule A of the Agreement available to the Company at net asset value and with
no sales charges, subject to the terms of the Participation Agreement, to fund
benefits under variable life insurance policies and variable annuity Contracts
(each, a "Contract," and collectively, the "Contracts") to be issued by the
Company; and
WHEREAS, the Participation Agreement provides that the Trust will bear the costs
of preparing and filing with the Securities and Exchange Commission the Trust's
prospectus, registration statement, proxy materials and reports, setting the
prospectus and shareholder reports in type, setting in type and printing the
proxy materials, and preparing all statements and notices required by any
federal or state law to be, in each case as may reasonably be necessary for the
performance of its obligations under the Participation Agreement (collectively,
the "Trust Materials"), and providing the Company with copies of the Trust
Materials; and
WHEREAS, the Participation Agreement provides that the Trust shall pay for the
cost of typesetting, printing and distributing periodic fund reports to
shareholders, prospectuses and supplements thereto, statements of additional
information, proxy statements and other materials that are required by law to be
sent to existing owners of Contracts ("Contract owners"), as well as the cost of
distributing such materials; and
WHEREAS, the Participation Agreement makes no provision for which party shall
incur various administrative expenses in connection with the servicing of
Contract owners or Participants who have allocated Contract value to a
Portfolio, including, but not limited to, responding to various Contract owner
inquiries regarding a Portfolio; and
WHEREAS, the Parties wish to allocate expenses in a manner that is fair and
equitable, consistent with the best interests of Contract owners and
participants, and that does not entail the expense and inconvenience of
separately identifying and accounting for each item of Trust expenses;
NOW, THEREFORE, in consideration of the mutual benefits and promises contained
herein, the Parties hereto agree as follows:
I. SERVICES PROVIDED:
The Company agrees to provide services including, but not limited to:
a) delivering and responding to inquiries respecting Trust
prospectuses, Statements of Additional Information, reports,
notices, proxies and proxy statements and other information
respecting the Portfolios (but not including services paid for by
the Trust);
b) facilitating the tabulation of Contract owners' and participants'
votes in the event of a meeting of Trust shareholders;
c) providing and administering Contract features for the benefit of
Contract owners and participants participating in the Trust,
including fund transfers, dollar cost averaging, asset allocation,
portfolio rebalancing, earnings sweep, and pre-authorized deposits
and withdrawals;
d) responding to inquiries from Contract owners and participants
using one or more of the Portfolios as an investment vehicle
regarding the services performed by the Company as they relate to
the Trust or its Portfolios;
e) teleservicing support in connection with the Portfolios;
f) maintenance of Company records reflecting shares purchased and
redeemed and share balances held by separate accounts of the
Company and the conveyance of that information to the Trust, its
transfer agent, or the Administrator as may be reasonably
requested;
g) facilitating the printing and mailing of reports to shareholders
and other shareholder communications from the Trust as may be
required pursuant to the Participation Agreement;
h) responding to inquiries from Contract owners or participants
concerning the Trust and its operations; and
i) providing such similar services as the Administrator or Trust may
reasonably request to the extent permitted or required under
applicable statutes, rules and regulations.
II. EXPENSE ALLOCATIONS:
Subject to Section III, the Company or its affiliates shall bear the
costs of:
a) printing and distributing all Trust Materials to be distributed to
prospective Contract owners as discussed in the Participation
Agreement as being distributed at the Company's expense;
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b) printing and distributing all sales literature or promotional
material developed by the Company or its affiliates and relating
to the Contracts; and
c) servicing Contract owners who have allocated Contract value to a
Portfolio, which servicing shall include, but is not limited to,
the items listed above.
III. PAYMENT OF EXPENSES:
a) The Administrator shall pay to the Company a quarterly fee
("Service Fee") equal to a percentage of the average daily
cumulative net assets due to investment in a class of the
Portfolio attributable to Contracts issued by the Company at the
annual rates shown in the attached Schedules A. Such Service Fee
shall be calculated and paid quarterly.
b) For purposes of calculating the amount of the Service Fee as
described in Section III(a) above, the "average daily cumulative
net assets" of a class of a Portfolio for any calendar quarter
shall be equal to the quotient produced by dividing (i) the sum of
the net assets of such class of a Portfolio, for each calendar
month as determined in accordance with the procedures established
from time to time by or under the direction of the Trust's Board
of Trustees for each business day of such month, by (ii) the
number of such business days;
c) The Administrator will calculate the Service Fee contemplated by
this Section and will make such payment, as appropriate, to the
Company within thirty (30) days after the last business day of
each calendar quarter thereafter. Each payment will be accompanied
by a statement showing the calculation of the Service Fee payable
by the Administrator, if any, and such other supporting data as
may be reasonably requested by the Company.
d) The Company agrees to make appropriate disclosure in its
prospectus and registration statement as to the payments for
services provided pursuant to this Agreement as required by the
federal securities laws or other applicable law.
e) From time to time, the Parties hereto shall review the Service Fee
to determine whether it reasonably approximates the incurred and
anticipated costs, over time, of the Company in connection with
its duties hereunder. The Parties agree to negotiate in good faith
any change to the Service Fee proposed by one of the Parties in
good faith.
f) The Parties agree that the Administrator's payments to the Company
are for administrative services only and do not constitute payment
in any manner for investment advisory services or costs of
distribution.
g) This Agreement shall not modify any of the provisions of the
Participation Agreement, but shall supplement those provisions.
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IV. TERM OF AGREEMENT:
This Agreement shall continue in effect for so long as the Company or its
successor(s) in interest, or any affiliate thereof, continues to hold
shares of the Trust or its Portfolios, and continues to perform in a
similar capacity for the Company and Trust.
V. INDEMNIFICATION:
a) The Company agrees to indemnify and hold harmless the
Administrator and its officers and directors, from any and all
loss, liability and expense resulting from the gross negligence or
willful wrongful act of the Company under this Agreement, except
to the extent such loss, liability or expense is the result of the
willful misfeasance, bad faith or gross negligence of the
Administrator in the performance of its duties, or by reason of
the reckless disregard of its obligations and duties under this
Agreement.
b) The Administrator agrees to indemnify and hold harmless the
Company and its officers and directors from any and all loss,
liability and expense resulting from the gross negligence or
willful wrongful act of the Administrator under this Agreement,
except to the extent such loss, liability or expense is the result
of the willful misfeasance, bad faith or gross negligence of the
Company in the performance of its duties, or by reason of the
reckless disregard of its obligations and duties under this
Agreement.
VI. AMENDMENT
This Agreement may be amended only upon mutual agreement of the Parties
hereto in writing.
VII. STANDARD OF CARE
The Parties shall exercise reasonable care in the performance of their
duties under this Agreement.
VIII. CONFIDENTIALITY
The terms of this arrangement will be held confidential by each Party
except to the extent that either Party or the Trust may deem it necessary
to disclose this arrangement.
IX. NOTICES:
Notices and communications required or permitted hereby will be given to
the following persons at the following addresses, or such other persons
as the Party receiving such notices or communications may subsequently
direct in writing:
If to the Trust:
ING Variable Products Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
0
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx
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If to the Administrator:
ING Funds Services, LLC.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxxx X. Xxxxxxxx
If to the Company:
ING Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx
X. APPLICABLE LAW:
Except insofar as the Investment Company Act of 1940 or other federal
laws and regulations may be controlling, this Agreement will be construed
and the provisions hereof interpreted under and in accordance with
Delaware law, without regard for that state's principles of conflict of
laws.
XI. EXECUTION IN COUNTERPARTS:
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
XII. SEVERABILITY:
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement
will not be affected thereby.
XIII. CUMULATIVE RIGHTS:
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, that the Parties are entitled to under
federal and state laws.
XIV. HEADINGS
The headings used in this Agreement are for purposes of reference only
and shall not limit or define, the meaning of the provisions of this
Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized officers
signing below.
ING FUNDS SERVICES, LLC ING INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title Executive VP & CFO Title: Pursuant to a Delegation of
Authority dated August 12, 1998
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SCHEDULE A
ING VARIABLE PRODUCTS TRUST
CLASS R CLASS S PORTFOLIOS
0.375% 0.575% ING VP MagnaCap Portfolio
0.275% 0.475% ING VP Research Enhanced Index Portfolio
0.375% 0.575% ING VP Growth Opportunities Portfolio
0.375% 0.575% ING XX XxxXxx Opportunities Portfolio
0.200% 0.400% ING VP Growth + Value Portfolio
0.375% 0.575% ING VP SmallCap Opportunities Portfolio
0.250% 0.450% ING VP International Value Portfolio
0.375% 0.575% ING VP High Yield Bond Portfolio
N/A 0.575% ING VP Large Company Value Portfolio
N/A 0.575% ING VP LargeCap Growth Portfolio
N/A 0.575% ING VP Financial Services Portfolio
N/A 0.575% ING VP Convertible Portfolio
N/A N/A ING VP International Portfolio
0.465% N/A ING VP Worldwide Growth Portfolio
N/A 0.200% ING VP International SmallCap Growth Portfolio
0.150% N/A ING VP Emerging Countries Portfolio
Scheduled dated: April 1, 2001
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