EXHIBIT 99-B.8.54
FORM OF SELLING AND SERVICES AGREEMENT
AND
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of this ___ day of _____________,
2004 by and among ING Insurance Company of America ("IICA"), ING Financial
Advisers, LLC ("ING Financial") (collectively, "ING"), and ______________
("Distributor"), acting as agent for the registered open-end management
investment companies whose shares are or may be underwritten by Distributor
(each a "Fund" or collectively the "Funds").
WHEREAS, Distributor acts as principal underwriter for the Funds; and
WHEREAS, IICA is an insurance company that issues annuity contracts to,
and/or provides 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 IICA (the "Contracts"); and
WHEREAS, IICA 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, IICA 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, IICA 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
IICA 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 IICA shall be maintained for those Plan assets directed for
investment in the Fund through the Contracts (collectively, the "Accounts.")
IICA as issuer of the Contracts or as service agent 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 shares available to be purchased by the Nominee
or by IICA, 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.
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(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. Distributor shall provide or cause to be provided to
ING Financial such information by 6:30 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 IICA 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, but in any
event no later than 4:00 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).
(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, but in any
event no later than 4:00 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).
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(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. 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.
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(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, IICA or the
Nominee and shall not be the responsibility of Distributor. The Nominee, or IICA
on behalf of its Separate Accounts, will be recognized as the sole shareholder
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 IICA a servicing fee based on the annual rate of
____% (_____% quarterly) of the average net assets invested in the Funds through
the Contracts or through IICA's arrangements with Plans in each calendar
quarter. Distributor will make such payments to IICA 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 IICA for the quarter and
such other supporting data as may be reasonably requested by IICA. If required
by a Plan or by applicable law, IICA 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 IICA.
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 IICA'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. Each 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.
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6. EXPENSES.
Distributor shall make available for reimbursement certain out-of-pocket
expenses IICA incurs in connection with providing shareholder services to
Contract owners or the Plans. These expenses include actual postage paid by IICA
in connection with mailing updated prospectuses, supplements and financial
reports to Contract owners or Plan Representatives or Participants for which
IICA provides shareholder services hereunder, and all costs incurred by IICA
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 IICA, ING Financial or Distributor upon six (6)
months advance written notice to the other parties;
(b) At the option of IICA 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;
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(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 IICA to substitute for the Fund's shares the
shares of another investment company in accordance with the terms of the
applicable Contracts. IICA 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 IICA 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 IICA may enter into subcontracts with
other dealers for the solicitation of sales of shares of the Funds without the
consent of Distributor, 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.
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 three (3) Business Days of receipt of such materials of its
approval or disapproval of such materials.
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(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 seven 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
IICA 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 IICA, the Nominee and each of their directors, officers, employees, agents
and each person, if any, who controls ING Financial and IICA and the Nominee
within the
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meaning of the 1933 Act against any losses, claims, damages or liabilities to
which ING Financial or IICA, 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 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 IICA, 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 IICA, 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 IICA. IICA represents and warrants:
(i) that it (1) is a life insurance company organized under the laws
of the State of Connecticut, (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
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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 IICA 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
various states, (2) are in good standing in such jurisdictions. (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
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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 Funds 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 IICA 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 corporation duly organized under the
laws of the State of ____________ (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.
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To ING Financial/ING:
ING Financial Advisers, LLC/ING Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
(000) 000-0000
To Distributor:
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Attention:
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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 agreement and understandings relating to such subject
matter.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date first written above.
ING INSURANCE COMPANY OF AMERICA
By
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Name
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Title
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ING FINANCIAL ADVISERS, LLC
By
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Name
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Title
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DISTRIBUTOR
By
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Name
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Title
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Schedule A
For any additional separate accounts
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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. All such information shall be furnished
to ING Financial or its affiliate by 6:30 p.m. Eastern 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. Eastern 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
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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 will 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 no later than 5:00 p.m. Eastern 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 will 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 5:00 p.m. Eastern
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.
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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.
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