Exhibit 1.A(3)(d)
WHOLESALING AGREEMENT
THIS WHOLESALING AGREEMENT ("Agreement"), made this ____ day of ____________,
20__, by and between SOUTHLAND LIFE INSURANCE COMPANY ("SOUTHLAND"), a Texas
corporation, and ING AMERICA EQUITIES, INC. ("ING AMERICA EQUITIES"), a Colorado
corporation, and ________________________________ ("BROKER-DEALER"), a
__________________ corporation, and ________________________________
("WHOLESALER") (collectively "THE PARTIES").
RECITALS
WHEREAS, SOUTHLAND issues certain variable life insurance policies described in
this Agreement or in the Schedules attached hereto (the "CONTRACTS"), which are
deemed securities under the Securities Act of 1933 ("1933 ACT"); and
WHEREAS, ING America Equities and BROKER-DEALER are duly licensed as
Broker-Dealers with the National Association of Securities Dealers ("NASD") and
the U.S. Securities and Exchange Commission ("SEC"); and
WHEREAS, WHOLESALER is a registered representative of BROKER-DEALER and a duly
licensed insurance agent; and
WHEREAS, SOUTHLAND has appointed ING AMERICA EQUITIES as the principal
underwriter and distributor of the
CONTRACTS; and
WHEREAS, SOUTHLAND, ING AMERICA EQUITIES, BROKER-DEALER and WHOLESALER desire to
establish an arrangement whereby Wholesaler will recommend to ING AMERICA
EQUITIES certain Broker-Dealers to solicit sales of the CONTRACTS and/or
recommend CONTRACTS to registered representatives of these Broker-Dealers for
sale to customers; and
WHEREAS, ING AMERICA EQUITIES delegates to BROKER-DEALER, to the extent legally
permitted, certain training and administrative responsibilities and duties in
connection with WHOLESALER'S activities pursuant to this Agreement.
NOW THEREFORE, in consideration of the premises and mutual promises contained
herein, THE PARTIES hereto agree as follows:
1) APPOINTMENT
SOUTHLAND and ING AMERICA EQUITIES hereby appoint WHOLESALER to
recommend certain Broker-Dealers to ING AMERICA EQUITIES to solicit
sales of the CONTRACTS which are described in the Schedules attached
hereto and/or recommend CONTRACTS to registered representatives of such
Broker-Dealers for sale to customers. SOUTHLAND hereby appoints
BROKER-DEALER and BROKER-DEALER accepts appointment to supervise
WHOLESALER'S wholesaling activities.
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2) REPRESENTATIONS
a) Each party to this Agreement represents to the others, through the
signatures below, that it has full power and authority to enter into
this Agreement and to perform the services and obligations contemplated
hereunder.
b) ING AMERICA EQUITIES represents that it is a member of the NASD and is
registered as a Broker-Dealer under the Securities Exchange Act of 1934
("1934 ACT) and under the laws of each jurisdiction in which such
registration is required for the sale of the CONTRACTS.
c) BROKER-DEALER represents that it is a member of the NASD and is
registered as a Broker-Dealer under the 1934 ACT and under the laws of
each jurisdiction in which such registration is required for the sale of
the CONTRACTS.
d) SOUTHLAND represents that the CONTRACTS and related separate accounts do
and will continue to comply with the registration and other applicable
requirements of the 1933 ACT, the Investment Company Act of 1940 ("xxx
0000 Xxx"), and the rules and regulations thereunder, including the
terms of any SEC order with respect thereto.
e) SOUTHLAND represents that the CONTRACTS have been duly filed and
accepted by the state insurance departments in jurisdictions where it is
authorized to transact business. SOUTHLAND shall provide notice of such
jurisdictions to THE PARTIES.
f) SOUTHLAND represents that the CONTRACT prospectuses currently included
in SOUTHLAND'S registration statement, as filed with the SEC, contain or
will contain, all statements and information which are required to be
stated therein by the 1933 ACT and in all respects conform to the
requirements thereof.
3) COMPLIANCE WITH NASD CONDUCT RULES AND FEDERAL AND STATE LAWS
BROKER-DEALER shall fully comply with the requirements of the 1934 Act
and all other applicable federal and state laws and with the rules of
the NASD. BROKER-DEALER shall establish such rules and procedures as are
necessary to diligently supervise the securities activities of
Representatives. BROKER-DEALER shall maintain appropriate books, records
and supervisory procedures as required by the SEC, NASD or other
regulatory agencies having jurisdiction.
4) LICENSING AND APPOINTMENT OF WHOLESALER AND BROKER-DEALERS
WHOLESALER shall recommend that certain Broker-Dealers or registered
representatives who desire to solicit CONTRACTS be contracted and
appointed with SOUTHLAND and ING AMERICA EQUITIES in accordance with
SOUTHLAND'S and ING AMERICA EQUITIES' procedures in effect at the time
of contracting and appointment. SOUTHLAND and ING AMERICA EQUITIES shall
have the right to reject or accept any such recommendation, but shall
not do so arbitrarily or unreasonably.
5) QUALIFICATION AND SUPERVISION OF WHOLESALER
a) Before WHOLESALER engages in the wholesaling activities described
herein, BROKER-DEALER will cause the Wholesaler (i) to be a registered
representative of BROKER-DEALER; (ii) to qualify under all applicable
laws to engage in wholesaling activities; (iii) to be trained in the
sale of the CONTRACTS;
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and (iv) to limit wholesaling activities to jurisdictions where
SOUTHLAND has authorized solicitation of the CONTRACTS.
b) BROKER-DEALER shall have full responsibility for the training,
supervision and control of WHOLESALER'S wholesaling activities.
WHOLESALER shall be subject to the control of BROKER-DEALER with respect
to activities in connection with the CONTRACTS. BROKER-DEALER shall
comply with the administrative procedures of SOUTHLAND and ING AMERICA
EQUITIES. Such procedures are subject to change and are freely amendable
from time to time by SOUTHLAND and ING AMERICA EQUITIES.
c) BROKER-DEALER has specific responsibility for supervising and reviewing
WHOLESALER'S use of sales literature, advertising and all other
communications in connection with the CONTRACTS. No sales solicitation,
including delivery of supplemental sales literature shall occur, be
delivered to, or used with a prospective purchaser unless accompanied or
preceded by the then current prospectus(es).
d) If WHOLESALER fails to comply with the BROKER-DEALER'S rules and
standards, the BROKER-DEALER shall terminate the wholesaling activities
of WHOLESALER relating to the CONTRACTS and shall promptly notify
SOUTHLAND and ING AMERICA EQUITIES of such termination.
e) Upon request by SOUTHLAND or ING AMERICA EQUITIES, BROKER-DEALER shall
furnish appropriate records to evidence BROKER-DEALER'S diligent
supervision.
6) ADVERTISING AND SALES PROMOTION MATERIALS
BROKER-DEALER warrants that only advertising and sales materials,
including illustrations, which have been approved in writing in advance
of use by SOUTHLAND and ING AMERICA EQUITIES will be used by WHOLESALER.
7) COMPENSATION
Compensation payable under this Agreement shall be paid to BROKER-DEALER
in accordance with the Schedule(s) attached hereto as are in effect at
the time premium payments are received by SOUTHLAND. SOUTHLAND reserves
the right to revise the Schedule(s) at any time upon ten (10) days prior
written notice to BROKER-DEALER. Compensation to WHOLESALER for
wholesaling activities shall be governed by an agreement between
BROKER-DEALER and WHOLESALER.
8) HOLD HARMLESS AND INDEMNIFICATION PROVISIONS
No party to this Agreement will be liable for any obligation, act or
omission of any other. Each party to this Agreement will hold harmless
and indemnify SOUTHLAND, ING AMERICA EQUITIES, BROKER-DEALER and
WHOLESALER, as appropriate, for losses or expenses suffered (including
reasonable attorneys' fees) as a result of a violation or non-compliance
by that party or ASSOCIATED PERSONS of that party of any applicable law
or regulation. The term "ASSOCIATED PERSON" herein shall be defined
consistently with such definition as contained in the NASD Membership
and Conduct Rules.
9) NON-WAIVER PROVISION
Failure of a party to terminate the Agreement for causes as set forth in
this Agreement does not constitute a waiver of the right to terminate
this Agreement at a later time.
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10) AMENDMENTS
Except as stated in Section 7, no amendment to this Agreement will be
effective unless it is in writing and signed by all parties hereto.
11) INDEPENDENT CONTRACTOR
BROKER-DEALER and WHOLESALER are independent contractors with respect to
SOUTHLAND and ING AMERICA EQUITIES.
12) NOTIFICATION AND COOPERATION IN INVESTIGATION
BROKER-DEALER and WHOLESALER agree to notify ING AMERICA EQUITIES
promptly of any disciplinary proceedings against WHOLESALER or any
threatened or filed arbitration action or civil litigation arising out
of WHOLESALER'S activities. BROKER-DEALER, WHOLESALER, ING AMERICA
EQUITIES and SOUTHLAND jointly agree to cooperate fully in any
insurance, securities or other regulatory investigation or proceeding or
judicial proceeding arising in connection with the activities
contemplated hereunder with regard to any CONTRACT.
13) BOOKS AND RECORDS
SOUTHLAND, ING AMERICA EQUITIES, BROKER-DEALER and WHOLESALER agree to
maintain the books, accounts and records so as to clearly and accurately
disclose the nature and details of transactions and to assist each other
in the timely presentation of records. ING AMERICA EQUITIES,
BROKER-DEALER and WHOLESALER shall each submit such records to the
regulatory and administrative bodies which have jurisdiction over THE
PARTIES hereto.
14) LIMITATIONS
No party other than SOUTHLAND or ING AMERICA EQUITIES shall have the
authority to make, alter or discharge any selling agreement on behalf of
SOUTHLAND or ING AMERICA EQUITIES. No party other than SOUTHLAND shall
have the authority to make, alter or discharge any CONTRACT issued by
SOUTHLAND, or to substitute or alter the forms which SOUTHLAND may
prescribe; or to enter into any proceeding in any forum, court or before
a regulatory agency in the name of or on behalf of SOUTHLAND.
15) AUTHORIZED ACTIVITIES
WHOLESALER's and BROKER-DEALER's activities related to, authorized by
and on behalf of SOUTHLAND and ING AMERICA EQUITIES under this Agreement
are limited to those described herein and specifically do not extend to
retail solicitation and sales of the CONTRACTS. Such solicitation or
sales are authorized only by an executed Selling and Supervisory
Agreement.
16) TERMINATION
This Agreement shall continue for an indefinite term, subject to the
termination by any party upon ten (10) days advance written notice to
the other parties, except that in the event ING AMERICA EQUITIES or
BROKER-DEALER ceases to be a registered Broker-Dealer or a member of the
NASD or in the event of a material breach of a representation or
covenant of this Agreement, this
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Agreement shall be immediately terminable. Upon termination of the
Agreement, the authorizations, rights and obligations shall cease,
except for the survival of the provisions and agreements in Sections 7,
8 and 12 and the payment of any accrued but unpaid compensation to
BROKER-DEALER or refund of compensation due to ING AMERICA EQUITIES and
SOUTHLAND, to the extent permitted by law.
17) NOTICES
All notices to SOUTHLAND and ING AMERICA EQUITIES relating to this
Agreement are deemed delivered when mailed to:
Southland Life Insurance Company
c/o Office of the General Counsel
0000 Xxxxxxxx
Xxxxxx, XX 00000-0000
with a copy to:
ING America Equities, Inc.
Attn: Chief Legal Officer
0000 Xxxxxxxx
Xxxxxx, XX 00000-0000
18) ASSIGNMENT
This Agreement may not be assigned except by written mutual consent of
THE PARTIES.
19) BINDING EFFECT; SEVERABILITY
This Agreement shall be binding on and shall inure to the benefit of THE
PARTIES to it and their respective successors in interest. If any
provision of the Agreement conflicts with any other provision, or if any
provision shall be held or made invalid by a court decision, statute,
rule or otherwise, the remainder of this Agreement shall not be affected
thereby.
20) GOVERNING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado. THE PARTIES agree that the District Court
for the City and County of Denver, Colorado, shall have jurisdiction and
be the appropriate venue for any required judicial interpretation and
enforcement of this Agreement.
21) 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.
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22) EFFECTIVE DATE; ENTIRE AGREEMENT
This Agreement shall be effective as of the date first specified above.
This Agreement, including all Schedules and exhibits hereto,
constitutes the entire Agreement between THE PARTIES and supersedes in
its entirety any and all previous agreements among THE PARTIES with
respect to wholesale activities related to the CONTRACTS.
IN WITNESS WHEREOF, this Agreement has been executed by THE PARTIES as of the
effective date.
SOUTHLAND LIFE INSURANCE COMPANY ING AMERICA EQUITIES, INC.
By: By:
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Print Name: Print Name:
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Title: Title:
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WHOLESALER BROKER-DEALER
By: By:
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Print Name: Print Name:
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Title: Title:
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(Address) (Address)
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(City, State, Zip Code) (City, State, Zip Code)
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