EXHIBIT 99-B.8.79
SELLING AND SERVICES AGREEMENT
AND
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of this 11th day of March, 2003 by
and among ING Life Insurance and Annuity Company ("ING Life"), ReliaStar Life
Insurance Company ("ReliaStar"), ReliaStar Life Insurance Company of New York
("ReliaStar New York") (collectively "Insurer(s)"), ING Financial Advisers, LLC
("ING Financial") (together with Insurers referred to collectively as "ING"),
and PIMCO Advisors Distributors LLC ("Distributor"), the Distributor for the
registered open end management investment companies whose shares are or may be
underwritten by Distributor and are listed on Exhibit II hereto (each a "Fund"
or collectively the "Funds").
WHEREAS, Distributor acts as principal underwriter for the Funds; and
WHEREAS, Insurers are insurance companies that issue annuity contracts to,
and/or provide various recordkeeping and other administrative services to,
certain plans under Sections 401, 403(b), 457 or 408 of the Internal Revenue
Code of 1986, as amended ("Code"), certain nonqualified deferred compensation
arrangements, and custodial accounts under Section 403(b)(7) or 408 of the Code
(collectively, "Plans"); and
WHEREAS, such Plans may invest in the Funds directly, or alternatively,
certain of such Plans may invest in the Funds indirectly through annuity
contracts issued by Insurers (the "Contracts"); and
WHEREAS, ING Life has established Variable Annuity Accounts B, C, D and F
and may establish such other accounts as may be set forth in Schedule A attached
hereto (the "Separate Accounts") to serve as an investment vehicle for the
Contracts; and
WHEREAS, ReliaStar has established Separate Account One and may establish
such other accounts as may be set forth in Schedule A attached hereto (the
"Separate Accounts") to serve as an investment vehicle for the Contracts; and
WHEREAS, ReliaStar New York has established a separate account and may
establish such other accounts as may be set forth in Schedule A attached hereto
(the "Separate Accounts") to serve as an investment vehicle for the Contracts;
and
WHEREAS, ING Life, ReliaStar and ReliaStar New York will provide various
administrative and shareholder services in connection with the investment by the
Plans in the Funds or in the Contracts; and
WHEREAS, ING Financial will distribute to Plans shares of the Funds or
units of the Separate Accounts that may in turn invest in the Funds;
NOW, THEREFORE, it is agreed as follows:
1. INVESTMENT OF PLAN ASSETS.
(a) With respect to Plans that invest in the Funds directly, ING
Financial represents that it is authorized under the Plans to implement the
investment of Plan assets in the name of an appropriately designated nominee of
each Plan ("Nominee") in shares of investment companies or other investment
vehicles specified by a sponsor, an investment adviser, an administrative
committee, or other fiduciary as designated by a Plan ("Plan Representative")
upon the direction of a Plan participant or beneficiary ("Participant"). The
parties acknowledge and agree that selections of particular investment companies
or other investment vehicles are made by Plan representatives or Participants,
who may change their respective selections from time to time in accordance with
the terms of the Plan.
(b) With respect to Plans that invest in the Funds indirectly
through the Contracts, ING Life represents that each of the Separate Accounts is
a separate account under Connecticut Insurance law and that it has registered or
will register each of the Separate Accounts (except for such Accounts for which
no such registration is required) as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act"), to serve as an investment
vehicle for the Contracts. Each Contract provides for the allocation of net
amounts received by ING Life to a Separate Account for investment in the shares
of one or more specified open-end management investment companies available
through that Separate Account as underlying investment media. Selection of a
particular investment management company and changes therein from time to time
are made by the Contract Owner or Participant, as applicable under a particular
Contract.
(c) With respect to Plans that invest in the Funds indirectly
through the Contracts, ReliaStar represents that each of the Separate Accounts
is a separate account under Minnesota Insurance law and that it has registered
or will register each of the Separate Accounts (except for such Accounts for
which no such registration is required) as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act"), to serve as an investment
vehicle for the Contracts. Each Contract provides for the allocation of net
amounts received by ReliaStar to a Separate Account for investment in the shares
of one or more specified open-end management investment companies available
through that Separate Account as underlying investment media. Selection of a
particular investment management company and changes therein from time to time
are made by the Contract Owner or Participant, as applicable under a particular
Contract.
(d) With respect to Plans that invest in the Funds indirectly
through the Contracts, ReliaStar New York represents that each of the Separate
Accounts is a separate account under New York Insurance law and that it has
registered or will register each of the Separate Accounts (except for such
Accounts for which no such registration is required) as a unit investment trust
under the Investment Company Act of 1940 (the "1940 Act"), to serve as an
investment vehicle for the Contracts. Each Contract provides for the allocation
of net amounts received by ReliaStar New York to a Separate Account for
investment in the shares of one or more specified open-end management investment
companies available through that Separate Account as underlying investment
media. Selection of a particular investment management company and changes
therein from time to time are made by the Contract Owner or Participant, as
applicable under a particular Contract.
2. OMNIBUS ACCOUNT.
The parties agree that, with respect to each Fund, a single omnibus account
held in the name of the Nominee shall be maintained for those Plan assets
directed for investment directly in the Fund, and a single omnibus account held
in the name of each Insurer shall be maintained for those Plan assets directed
for investment in the Fund through the Contracts (collectively, the "Accounts.")
Insurers as issuers of the Contracts or as service agents for the Plans, shall
facilitate purchase and sale transactions with respect to the Accounts in
accordance with the Agreement.
3. PRICING INFORMATION, ORDERS, SETTLEMENT.
(a) Distributor will make Class A shares ("shares") available to be
purchased by the Nominee or by Insurers, as applicable, on behalf of the
Accounts, at the net asset value applicable to each order; provided, however,
that the Plans or the Separate Accounts meet the criteria for purchasing shares
of the Funds at net asset value as described in the Funds' prospectuses. Fund
shares shall be purchased and redeemed on a net basis for such Plans or such
Separate Accounts in such quantity and at such time determined by ING or the
Nominee to correspond with investment instructions received by ING from Contract
owners, Plan Representatives or Participants.
(b) Distributor agrees to furnish or cause to be furnished to ING Financial
for each Fund: (i) confirmed net asset value information as of the close of
trading (currently 4:00 p.m., East Coast time) on the New York Stock Exchange
("Close of Trading") on each business day that the New York Stock Exchange is
open for business ("Business Day") or at such other time as the net asset value
of a Fund is calculated as disclosed in the relevant then current prospectus(es)
in a format that includes the Fund's name and the change from the last
calculated net asset value, (ii) dividend and capital gains information as it
arises, and (iii) in the case of a fixed income fund, the daily accrual or the
distribution rate factor. The Distributor or its designee shall use commercially
reasonable efforts to provide or cause to be provided to ING Financial such
information by 6:30 p.m. East Coast time on such Business Day, but will in no
event provide such information later than 7:00 p.m. East Coast time.
(c) ING Financial, as agent for the Funds for the sole purposes expressed
herein shall receive from Contract owners, Plan Representatives or Participants
for acceptance as of the Close of Trading on each Business Day: (i) orders for
the purchase of shares of the Funds, exchange orders, and redemption requests
and redemption directions with respect to shares of the Funds held by the
Nominee or by Insurers on behalf of its Separate Accounts ("Instructions"), (ii)
transmit to Distributor such Instructions no later than 9:00 a.m., East Coast
time on the next following Business Day, and (iii) upon acceptance of any such
Instructions, communicate such acceptance to the Contract owners, Plan
Representatives or Plan Participants, as appropriate ("Confirmation"). The
Business Day on which such Instructions are received in proper form by ING
Financial and time stamped by the Close of Trading will be the date as of which
Fund shares shall be deemed purchased, exchanged, or redeemed as a result of
such Instructions. Instructions received in proper form by ING Financial and
time stamped after the Close of Trading on any given Business Day shall be
treated as if received on the next following Business Day. ING Financial agrees
that all Instructions received by ING Financial, which will be transmitted to
Distributor for processing as of a particular Business Day, will have been
received and time stamped prior to the Close of Trading on that previous
Business Day.
(d) ING Financial will wire payment, or arrange for payment to be wired,
for such purchase orders, in immediately available funds, to a Fund custodial
account or accounts designated by Distributor, as soon as possible and shall use
commercially reasonable efforts to wire payment, or arrange for payment to be
wired by 3:00 p.m., East Coast time on the same Business Day on which such
purchase orders are made by ING in conformance with Section 3(c) but in any
event no later than 4:00 p.m. East Coast time.
(e) Distributor or its designees will wire payment, or arrange for payment
to be wired, for redemption orders, in immediately available funds, to an
account or accounts designated by ING Financial, as soon as possible and shall
use commercially reasonable efforts to wire payment, or arrange for payment to
be wired by 3:00 p.m., East Coast time on the same Business Day on which such
redemption orders are received by the Distributor in conformance with Section
3(c) but in any event no later than 4:00 p.m. East Coast time.
(f) In lieu of applicable provisions set forth in paragraphs 3(a) through
3(e) above, the parties may agree to provide pricing information, execute orders
and wire payments for purchases and redemptions through National Securities
Clearing Corporation's Fund/SERV System, in which case such activities will be
governed by the provisions set forth in Exhibit I to this Agreement.
(g) Upon Distributor's request, ING shall provide copies of historical
records relating to transactions between the Funds and the Contract owners, Plan
Representatives or Participants investing in such Funds, written communications
regarding the Funds to or from such persons, and other materials, in each case,
as may reasonably be requested to enable Distributor or any other designated
entity, including without limitation, auditors, investment advisers, or transfer
agents of the Funds to monitor and review the services being provided under this
Agreement, or to comply with any request of a governmental body or
self-regulatory organization or a shareholder. ING also agrees that ING will
permit Distributor or the Funds, or any duly designated representative to have
reasonable access to ING's personnel and records in order to facilitate the
monitoring of the quality of the services being provided under this Agreement.
(h) ING Financial shall assume responsibility as herein described for any
loss to Distributor or to a Fund caused by a cancellation or correction made to
an Instruction by a Contract owner, Plan Representative or Participant
subsequent to the date as of which such Instruction has been received by ING
Financial and originally relayed to Distributor, and ING Financial will
immediately pay such loss to Distributor or such Fund upon ING Financial's
receipt of written notification, with supporting data.
(i) Distributor shall indemnify and hold ING harmless, from the effective
date of this Agreement, against any amount ING is required to pay to Contract
owners, Plans, Plan Representatives or Participants due to: (i) an incorrect
calculation of a Fund's daily net asset value, dividend rate, or capital gains
distribution rate or (ii) incorrect or late reporting of the daily net asset
value, dividend rate, or capital gain distribution rate of a Fund, upon written
notification by ING, with supporting data, to Distributor. In addition, the Fund
or the Distributor shall be liable to ING for systems and out of pocket costs
incurred by ING in making a Contract owner's, a Plan's or a Participant's
account whole, if such costs or expenses are a result of the Fund's failure to
provide timely or correct net asset values, dividend and capital gains or
financial information and if such information is not corrected by 4:00 p.m. East
Coast time of the next business day after releasing such incorrect information
provided the incorrect NAV as well as the correct NAV for each day that the
error occurred is provided and further provided that ING and Distributor agree
in advance as to the method/manner of correcting such error. In no case shall
Distributor be liable for any amount needed to correct a particular account
unless adjustment is required for the amount involved pursuant to the Fund's
then current error correction procedure. If a mistake is caused in supplying
such information or confirmations, which results in a reconciliation with
incorrect information, the amount required to make a Contract owner's or a
Plan's or a Participant's account whole shall be borne by the party providing
the incorrect information, regardless of when the error is corrected.
(j) Each party shall notify the other of any errors or omissions in any
information, including a net asset value and distribution information set forth
above, and interruptions in or delay or unavailability of, the means of
transmittal of any such information as promptly as possible. ING Financial and
Distributor agree to maintain reasonable errors and omissions insurance coverage
commensurate with each party's respective responsibilities under this Agreement.
4. SERVICING FEES.
The provision of shareholder and administrative services to Contract owners
or to the Plans shall be the responsibility of ING Financial, Insurers or the
Nominee and shall not be the responsibility of Distributor. The Nominee, or
Insurers on behalf of their Separate Accounts, will be recognized as the sole
shareholders of Fund shares purchased under this Agreement. It is further
recognized that there will be a substantial savings in administrative expense
and recordkeeping expenses by virtue of having one shareholder rather than
multiple shareholders. In consideration of the administrative savings resulting
from such arrangement, Distributor agrees to pay to the applicable Insurer a
servicing fee based on the annual rate of __% (____% quarterly) of the average
net assets invested in the Funds through the Contracts or through Insurer's
arrangements with Plans in each calendar quarter. Distributor will make such
payments to Insurer within thirty (30) days after the end of each calendar
quarter. Each payment will be accompanied by a statement showing the calculation
of the fee payable to Insurer for the quarter and such other supporting data as
may be reasonably requested by Insurer. If required by a Plan or by applicable
law, Insurer shall have the right to allocate to a Plan or to Participant
accounts in a Plan all or a portion of such servicing fees, or to use servicing
fees it collects from Distributor to offset other fees payable by the Plan to
Insurer.
5. 12b-1 FEES.
To compensate ING Financial for its distribution of Fund Shares,
Distributor shall make quarterly payments to ING Financial based on the annual
rate of ___% (___% quarterly) of the average net assets invested in the Funds
through the Contracts or through Insurer's arrangements with Plans in each
calendar quarter. Distributor will make such payments to ING Financial within
thirty (30) days after the end of each calendar quarter. Upon request, payment
will be accompanied by a statement showing the calculation of the fee payable to
ING Financial for the quarter and such other supporting data as may be
reasonably requested by ING Financial. If required by a Plan or by applicable
law, ING Financial shall have the right to allocate to a Plan or to Participant
accounts in a Plan all or a portion of such 12b-1 fees, or to use 12b-1 fees it
collects from Distributor to offset other fees payable by the Plan to ING
Financial. Payments pursuant to this Section shall only be made by Distributor
after receipt thereof by Distributor from the applicable Trust pursuant to its
12b-1 Plan.
6. EXPENSES.
Distributor shall make available for reimbursement certain out-of-pocket
expenses Insurers incur in connection with providing shareholder services to
Contract owners or the Plans. These expenses include actual postage paid by
Insurers in connection with mailing updated prospectuses, supplements and
financial reports to Contract owners or Plan Representatives or Participants for
which Insurers provide shareholder services hereunder, and all costs incurred by
Insurers associated with proxies for the Fund, including proxy preparation,
group authorization letters, programming for tabulation and necessary materials
(including postage). Except as otherwise agreed in writing, ING shall bear all
other expenses incidental to the performance of the services described herein.
Distributor shall, however, provide ING, or at ING's request, the Plan, with
such sufficient copies of relevant prospectuses for all Participants making an
initial Fund purchase as well as relevant prospectuses, prospectus supplements
and periodic reports to shareholders, and other material as shall be reasonably
requested by ING to disseminate to Plan participants who purchase shares of the
Funds.
7. TERMINATION.
This Agreement shall terminate as to the maintenance of the Account:
(a) At the option of either the Insurers, ING Financial or Distributor upon
135 days advance written notice to the other parties;
(b) At the option of the Insurers or ING Financial, if shares of the Funds
are not available for any reason to meet the investment requirements of the
Contracts or the Plans; provided, however, that prompt advance notice of
election to terminate shall be furnished by the terminating entity;
(c) At the option of either ING Financial or Distributor, upon institution
of formal disciplinary or investigative proceedings against ING Financial,
Distributor or the Funds by the National Association of Securities Dealers, Inc.
("NASD"), SEC, or any other regulatory body;
(d) At the option of Distributor, if Distributor shall reasonably determine
in good faith that shares of the Funds are not being offered in conformity with
the terms of this Agreement;
(e) At the option of ING, upon termination of the management agreement
between the Fund and its investment adviser; written notice of such termination
shall be promptly furnished to ING;
(f) Upon the determination of Insurers to substitute for the Fund's shares
the shares of another investment company in accordance with the terms of the
applicable Contracts. Insurers will give 60 days' written notice to the Fund and
the Distributor of any decision to replace the Fund's shares;
(g) Upon assignment of this Agreement by any party, unless made with the
written consent of all other parties hereto; provided, however, that ING
Financial and Insurers may assign, without consent of Distributor, their
respective duties and responsibilities under this Agreement to any of their
affiliates, and provided, further, that ING Financial or Insurers may enter into
subcontracts with other dealers for the solicitation of sales of shares of the
Funds without the consent of Distributor provided that ING remains fully
responsible to Distributor under the terms of this Agreement to the same extent
as if such delegation had not taken place; or
(h) If the Fund's shares are not registered, issued or sold in conformance
with federal law or such law precludes the use of Fund shares as an investment
vehicle for the Contracts or the Plans; provided, however, that prompt notice
shall be given by any party should such situation occur.
8. CONTINUATION OF AGREEMENT.
Termination as the result of any cause listed in Section 7 hereof shall not
affect the Funds' respective obligations to continue to maintain the Account as
an investment option for Contracts then in force for which its shares serve or
may serve as the underlying medium, or for Plans electing to invest in the Funds
prior to the termination of this Agreement. However, nothing in this Agreement
shall prevent the merger of any Fund into another affiliated or unaffiliated
fund, the liquidation of any Fund or the cessation of sales of shares by any
Fund. In the event of the cessation of the sale of shares of any Fund, the
Contracts shall be treated in the same manner that all other shareholders of
such Fund are treated insofar as purchases of additional shares and Plan
Participants in any Plan that owned shares (directly or through the Contracts)
for any Plan Participant will be allowed to purchase shares for their plan
accounts for as long as (i) the Plan continues to own some shares and (ii) the
Fund continues to sell shares.
9. ADVERTISING AND RELATED MATERIALS.
(a) Advertising and literature with respect to the Funds prepared by ING
Financial or the Nominee or its agents for use in marketing shares of the Funds
to Contract owners or Plans (except any material that simply lists the Funds'
names) shall be submitted to Distributor for review and approval before such
material is used with the general public or any Contract owner, Plan, Plan
Representative, or Participant. Distributor shall advise the submitting party in
writing within five (5) Business Days of receipt of such materials of its
approval or disapproval of such materials.
(b) Distributor will provide to ING at least one complete copy of all
prospectuses, statements of additional information, annual and semiannual
reports and proxy statements, other related documents, and all amendments or
supplements to any of the above documents that relate to the Funds promptly
after the filing of such document with the SEC or other regulatory authorities.
(c) Distributor will provide via Excel spreadsheet diskette format or in
electronic transmission to ING at least quarterly portfolio information
necessary to update Fund profiles with twelve (12) Business Days following the
end of each quarter.
10. PROXY VOTING.
ING or the Nominee will distribute to Contract owners, Plan Representatives
or Participants all proxy materials furnished by Distributor or its designees
for the Funds. ING and the Nominee shall not oppose or interfere with the
solicitation of proxies for Fund shares held for such beneficial owners.
11. INDEMNIFICATION.
(a) ING agrees to indemnify and hold harmless the Funds, Distributor and
each of their directors, officers, employees, agents and each person, if any,
who controls the Funds or their investment adviser within the meaning of the
Securities Act of 1933 ("1933 Act") against any losses, claims, damages or
liabilities to which the Funds, Distributor or any such director, officer,
employee, agent, or controlling person may become subject, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) (i)
arise out of, or are based upon, the provision of administrative services by
Insurers under this Agreement, or (ii) result from a breach of a material
provision of this Agreement. ING will reimburse any legal or other expenses
reasonably incurred by Distributor or any such director, officer, employee,
agent, or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that ING will
not be liable for indemnification hereunder to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon the gross
negligence or willful misconduct of Distributor or any such director, officer,
employee, agent or any controlling person herein defined in performing their
obligations under this Agreement.
(b) Distributor agrees to indemnify and hold harmless each of ING Financial
and Insurers, the Nominee and each of their directors, officers, employees,
agents and each person, if any, who controls ING Financial and Insurers and the
Nominee within the meaning of the 1933 Act against any losses, claims, damages
or liabilities to which ING Financial or Insurers, the Nominee, or any such
director, officer, employee, agent or controlling person may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement of any material
fact contained in the registration statement, prospectus or sales literature of
the Funds provided by Distributor or arise out of, or are based upon, the
omission or the alleged omission to state a material fact that is necessary to
make the statements therein not misleading or (ii) result from a breach of a
material provision of this Agreement. Distributor will reimburse any legal or
other expenses reasonably incurred by ING Financial or Insurers, the Nominee, or
any such director, officer, employee, agent, or controlling person in connection
with investigation or defending any such loss, claim, damage, liability or
action; provided, however, that will not be liable for indemnification hereunder
to the extent that any such loss, claim, damage or liability arises out of, or
is based upon, the gross negligence or willful misconduct of ING Financial or
Insurers, the Nominee or their respective directors, officers, employees,
agents, or any controlling person herein defined in the performance of their
obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 11. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
12. REPRESENTATIONS AND WARRANTIES.
(a) Representations of Insurers. Each Insurer represents and warrants:
(i) that it (1) is a life insurance company organized under the laws
of the State of Connecticut, the State of Minnesota and the State of New York,
respectively, (2) is in good standing in that jurisdiction, (3) is in material
compliance with all applicable federal and state insurance laws, (4) is duly
licensed and authorized to conduct business in every jurisdiction where such
license or authorization is required, and will maintain such license or
authorization in effect at all times during the term of this Agreement, and (5)
has full authority to enter into this Agreement and carry out its obligations
pursuant to it terms; and
(ii) that it is authorized under the Plans to (1) provide
administrative services to the Plans and (2) facilitate transactions in the Fund
through the Account.
(b) Representations of ING Financial. ING Financial represents and
warrants:
(i) that it (1) is a member in good standing of the NASD, (2) is
registered as a broker-dealer with the SEC, and (3) will continue to remain in
good standing and be so registered during the term of this Agreement;
(ii) that it (1) is a limited liability company duly organized under
the laws of the State of Delaware , (2) is in good standing in that
jurisdiction, (3) is in material compliance with all applicable federal, state
and securities laws, (4) is duly registered and authorized to conduct business
in every jurisdiction where such registration or authorization is required, and
will maintain such registration or authorization in effect at all times during
the term of this Agreement, and (5) has full authority to enter into this
Agreement and carry out its obligations pursuant to the terms of this Agreement;
(iii) that it is authorized under the Plans to make available
investments of Plan assets in the name of the Nominee of each Plan or in the
name of Insurers in shares of investment companies or other investment vehicles
specified by Plan Representatives or Participants; and
(iv) that it will not, without the written consent of Distributor,
make representations concerning shares of the Funds except those contained in
the then-current prospectus and in the current printed sales literature approved
by either the Fund or Distributor.
(c) Representations of Distributor. Distributor represents and warrants:
(i) that the Funds (1) are duly organized under the laws of The
Commonwealth of Massachusetts, (2) are in good standing in such jurisdiction.
(3) are in material compliance with all applicable federal, state and securities
laws, and (4) are duly licensed and authorized to conduct business in every
jurisdiction where such license or authorization is required;
(ii) that the shares of the Funds are registered under the 1933 Act,
duly authorized for issuance and sold in compliance with the laws of the States
and all applicable federal, state, and securities laws; that the Funds amend
their registration statements under the 1933 Act and the 1940 Act from time to
time as required or in order to effect the continuous offering of its shares;
and that the Funds have registered and qualified its shares for sale in
accordance with the laws of each jurisdiction where it is required to do so;
(iii) that the Trusts of which the Funds are a series of are currently
qualified as regulated investment companies under Subchapter M of the Internal
Revenue Code of 1986, as amended, and will make every effort to maintain such
qualification, and that Distributor will notify ING Financial and Insurers
immediately upon having a reasonable basis for believing that any of the Funds
have ceased to so qualify or that any might not qualify in the future;
(iv) that Distributor (1) is a member in good standing of the NASD,
(2) is registered as a broker-dealer with the SEC, and (3) will continue to
remain in good standing and be so registered during the term of this Agreement;
and
(v) that Distributor (1) is a limited liability company duly
organized under the laws of the State of Delaware (2) is in good standing in
that jurisdiction, (3) is in material compliance with all applicable federal,
state, and securities laws, (4) is duly registered and authorized in every
jurisdiction where such license or registration is required, and will maintain
such registration or authorization in effect at all times during the term of
this Agreement, and (5) has full authority to enter into this Agreement and
carry out its obligations pursuant to the terms of this Agreement.
13. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed under the laws of the State of Connecticut without
giving effect to the principles of conflicts of laws and the provisions shall be
continuous.
14. MISCELLANEOUS.
(a) Amendment and Waiver. Neither this Agreement nor any provision hereof
may be amended, waived, discharged or terminated orally, but only by an
instrument in writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be given
or made in writing and shall be delivered personally, or sent by telex,
facsimile, express delivery or registered or certified mail, postage prepaid,
return receipt requested, to the party or parties to whom they are directed at
the following address, or at such other addresses as may be designated by notice
from such party to all other parties.
To ING:
ING Financial Advisers, LLC/ING Life Insurance and Annuity
Company/ReliaStar Life Insurance Company/ReliaStar Life Insurance
Company of New York
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
(000) 000-0000
To Distributor:
PIMCO Advisors Distributors LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
---------------------------
Attention: President
---------------------------
Any notice, demand or other communication given in a manner prescribed in this
Subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted successors
and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
(e) Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
(f) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter hereof,
and supersedes all prior agreements and understandings relating to such subject
matter.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date first written above.
ING LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
RELIASTAR LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
ING FINANCIAL ADVISERS, LLC
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
PIMCO ADVISORS DISTRIBUTORS LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Title: Managing Director
---------------------------------
Schedule A
For any additional separate accounts
EXHIBIT I
TO
SELLING AND SERVICES AGREEMENT
PROCEDURES FOR PRICING AND ORDER/SETTLEMENT THROUGH NATIONAL SECURITIES CLEARING
CORPORATION'S MUTUAL FUND PROFILE SYSTEM AND MUTUAL FUND SETTLEMENT, ENTRY AND
REGISTRATION VERIFICATION SYSTEM
1. As provided in Section 3(f) of the Selling and Services Agreement and Fund
Participation Agreement the parties hereby agree to provide pricing information
execute orders and wire payments for purchases and redemptions of Fund shares
through National Securities Clearing Corporation ("NSCC") and its subsidiary
systems as follows:
(a) Distributor or the Funds will furnish to ING Financial or its affiliate
through NSCC's Mutual Fund Profile System ("MFPS") (1) the most current net
asset value information for each Fund, (2) a schedule of anticipated
dividend and distribution payment dates for each Fund, which is subject to
change without prior notice, ordinary income and capital gain dividend
rates on the Fund's ex-date, and (3) in the case of fixed income funds that
declare daily dividends, the daily accrual or the interest rate factor. The
Distributor or the Funds shall use commercially reasonable efforts to
furnish to ING Financial or its affiliate all such information by 6:30 p.m.
East Coast Time, but will in no event provide such information later than
7:00 p.m. East Coast Time on each business day that the Fund is open for
business (each a "Business Day") or at such other time as that information
becomes available. Changes in pricing information will be communicated to
both NSCC and ING Financial or its affiliate.
(b) Upon receipt of Fund purchase, exchange and redemption instructions for
acceptance as of the time at which a Fund's net asset value is calculated
as specified in such Fund's prospectus ("Close of Trading") on each
Business Day ("Instructions"), and upon its determination that there are
good funds with respect to Instructions involving the purchase of Shares,
ING Financial or its affiliate will calculate the net purchase or
redemption order for each Fund. Orders for net purchases or net redemptions
derived from Instructions received by ING Financial or its affiliate prior
to the Close of Trading on any given Business Day will be sent to the
Defined Contribution Interface of NSCC's Mutual Fund Settlement, Entry and
Registration Verification System ("Fund/SERV") by 5:00 a.m. East Coast Time
on the next Business Day. Subject to ING Financial's or its affiliate's
compliance with the foregoing, ING Financial or its affiliate will be
considered the agent of the Distributor and the Funds, and the Business Day
on which Instructions are received by ING Financial or its affiliate in
proper form prior to the Close of Trading will be the date as of which
shares of the Funds are deemed purchased, exchanged or redeemed pursuant to
such Instructions. Instructions received in proper form by ING Financial or
its affiliate after the Close of Trading on any given Business Day will be
treated as if received on the next following Business Day. Dividends and
capital gains distributions will be automatically reinvested at net asset
value in accordance with the Fund's then current prospectuses.
(c) ING Financial or its affiliate shall use its best efforts to wire payment
for net purchase orders by the Fund's NSCC Firm Number, in immediately
available funds, to an NSCC settling bank account designated by ING
Financial or its affiliate by 3:00 p.m. East Coast Time, but will in no
event wire such payment later than 5:00 p.m. East Coast time on the same
Business Day such purchase orders are communicated to NSCC. For purchases
of shares of daily dividend accrual funds, those shares will not begin to
accrue dividends until the day the payment for those shares is received.
(d) NSCC shall use its best efforts to wire payment for net redemption orders
by Fund, in immediately available funds, to an NSCC settling bank account
designated by ING Financial or its affiliate, by 3:00 p.m. East Coast Time,
but will in no event wire such payment later than 5:00 p.m. East Coast Time
on the Business Day such redemption orders are communicated to NSCC, except
as provided in a Fund's prospectus and statement of additional information.
(e) With respect to (c) or (d) above, if Distributor does not send a
confirmation of ING Financial's or its affiliate's purchase or redemption
order to NSCC by the applicable deadline to be included in that Business
Day's payment cycle, payment for such purchases or redemptions will be made
the following Business Day.
(f) If on any day ING Financial or its affiliate or Distributor is unable to
meet the NSCC deadline for the transmission of purchase or redemption
orders, it may at its option transmit such orders and make such payments
for purchases and redemptions directly to Distributor or to ING Financial
or its affiliate, as applicable, as is otherwise provided in the Agreement.
(g) These procedures are subject to any additional terms in each Fund's
prospectus and the requirements of applicable law. The Funds reserve the
right, at their discretion and without notice, to suspend the sale of
shares or withdraw the sale of shares of any Fund.
2. ING Financial or its affiliate, Distributor and clearing agents (if
applicable) are each required to have entered into membership agreements with
NSCC and met all requirements to participate in the MFPS and Fund/SERV systems
before these procedures may be utilized. Each party will be bound by the terms
of their membership agreement with NSCC and will perform any and all duties,
functions, procedures and responsibilities assigned to it and as otherwise
established by NSCC applicable to the MFPS and Fund/SERV system and the
Networking Matrix Level utilized.
3. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated herein, the
terms defined in the Agreement shall have the same meaning as in this Exhibit.
EXHIBIT II
PIMCO NFJ Small-Cap Value Fund
PIMCO RCM Global Technology Fund
PIMCO CCM Capital Appreciation Fund
PIMCO PEA Growth Fund
PIMCO PEA Innovation Fund
PIMCO PEA Opportunity Fund
PIMCO PEA Renaissance Fund
PIMCO PEA Target Fund
PIMCO PEA Value Fund
PIMCO RCM Large-Cap Growth Fund
PIMCO RCM Biotechnology Fund
PIMCO CCM Mid-Cap Fund
