EXHIBIT 99-B.8.88
SELLING AND SERVICES AGREEMENT
AND
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of this first day of November,
2002 by and among ING Life Insurance and Annuity Company ("ING Life"), ING
Financial Advisers, LLC ("ING Financial") (collectively, "ING"), UBS Global
Asset Management (US) Inc. ("Distributor"), and The UBS Funds on behalf of the
series listed on Schedule A attached hereto (each a "Fund" or collectively the
"Funds").
WHEREAS, Distributor acts as principal underwriter for the Funds; and
WHEREAS, ING Life is an insurance company that issues annuity contracts to,
and/or provides various recordkeeping and other administrative services to,
certain plans organized 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 administered 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 ING Life (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 B attached
hereto (the "Separate Accounts") to serve as an investment vehicle for the
Contracts; and
WHEREAS, ING Life 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.
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 ING Life shall be maintained for those Plan assets directed for
investment in the Fund through the Contracts (collectively, the "Accounts"). ING
Life 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 ING Life, 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 regular 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 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 ING Life on behalf of its Separate Accounts ("Instructions"), (ii)
transmit to Distributor (or the Fund's transfer agent) such Instructions no
later than 7:30 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 such
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. Such indemnification
and hold harmless shall apply regardless of when ING makes the corrections to
its customers' accounts, provided that ING will make every effort to correct
such errors as soon as reasonably practicable. 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.
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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. ADMINISTRATIVE FEES.
The provision of shareholder and administrative services to Contract owners
or to the Plans shall be the responsibility of ING Financial, ING Life or the
Nominee and shall not be the responsibility of Distributor. The Nominee, or ING
Life 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 and/or the Fund agrees to pay to ING Life an
administrative fee based on the annual rate of ___% (consisting of the current
sub-transfer agency fee approved by the Fund's Board with the remainder to be
paid from the Fund's Rule 12b-1 fee and/or the net advisory fee) of the average
net assets invested in the Funds through the Contracts or through ING Life's
arrangements with Plans in each calendar quarter. Distributor and/or the Fund
will make such payments to ING Life 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 Life for the quarter and such other
supporting data as may be reasonably requested by ING Life. In order to
facilitate payment of the administrative fee, ING Life will provide to
Distributor, on a quarterly basis, an invoice containing the number of
participant accounts in each Fund.
In the event that the administrative fee is being paid pursuant to a 12b-1 Plan,
the parties understand that the Fund has adopted a 12b-1 Plan and that the
payment of fees under this Section shall be paid solely out of the fees paid to
the Distributor under such 12b-1 Plan, and shall be paid only so long as the
12b-1 Plan and this Agreement are in effect. All payments made to ING Life under
this Section are for administrative and shareholder services only and do not
constitute payment in any manner for investment advisory services or for costs
of distribution.
5. EXPENSES.
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Distributor shall make available for reimbursement certain out-of-pocket
expenses ING Life incurs in connection with providing shareholder services to
Contract owners or the Plans. These expenses include actual postage paid by ING
Life in connection with mailing updated prospectuses, supplements and financial
reports to Contract owners or Plan Representatives or Participants for which ING
Life provides shareholder services hereunder, and all costs incurred by ING Life
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.
6. TERMINATION.
This Agreement shall terminate as to the maintenance of the Account:
(a) At the option of either ING Life, ING Financial or Distributor upon
six (6) months advance written notice to the other parties;
(b) At the option of ING Life 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, notice of which shall be promptly
provided;
(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 ING Life to substitute for the Fund's shares
the shares of another investment company in accordance with the terms of the
applicable Contracts. ING Life will give 60 days' written notice to the Fund and
the Distributor of any decision to replace the Fund's shares;
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(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 ING Life 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 ING Life 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.
7. 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.
8. 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.
(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.
9. PROXY VOTING.
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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.
10. 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 ING
Life 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 ING Life, the Nominee and each of their directors, officers,
employees, agents and each person, if any, who controls ING Financial and ING
Life and the Nominee within the meaning of the 1933 Act against any losses,
claims, damages or liabilities to which ING Financial or ING Life, 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 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 ING Life, 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 ING Life, the
Nominee or their respective directors, officers, employees, agents, or any
controlling person herein defined in the performance of their obligations under
this Agreement.
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(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.
11. REPRESENTATIONS AND WARRANTIES.
(a) Representations of ING Life. ING Life 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 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;
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(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 ING Life 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 series of a Delaware business trust, (2)
the Trust is in good standing in such jurisdiction. (3) are in material
compliance with all applicable federal and state securities laws;
(ii) that the shares of each Fund are registered under the 1933 Act,
duly authorized for issuance and sold in compliance with the laws of the States
and all applicable federal and state securities laws; that the Funds amend their
registration statement under the 1933 Act and the 1940 Act from time to time as
required or in order to effect the continuous offering of their shares; and that
each Fund has 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 ING Life 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 Delaware(2) is in good standing in that jurisdiction, (3)
is in material compliance with all applicable federal and state 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.
12. GOVERNING LAW.
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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.
13. 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 Financial/ING:
ING Financial Advisers, LLC/ING Life Insurance and Annuity Company
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Counsel
(000) 000-0000
To Distributor or the Funds:
UBS Global Asset Management (US) Inc.
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
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.
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(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.
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
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Name: Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title: Vice President
----------------------------------------
ING FINANCIAL ADVISERS, LLC
By: /s/ Xxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxx
----------------------------------------
Title: Vice President
----------------------------------------
UBS GLOBAL ASSET MANAGEMENT
(US) INC.
By: /s/ XxXxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------- ---------------------------
Name: XxXxxx Xxxxxx Xxxxxx X. Xxxxxxxx
---------------------------------------- ---------------------------
Title: Managing Director Executive Director
---------------------------------------- ---------------------------
THE UBS FUNDS
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
----------------------------------------
Title: Vice President and Assistant Secretary
----------------------------------------
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SCHEDULE A
AVAILABLE FUND SERIES
UBS U.S. Small Cap Growth Fund - Class A
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SCHEDULE B
FOR ANY ADDITIONAL SEPARATE ACCOUNTS
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EXHIBIT I
TO
SELLING AND SERVICES AGREEMENT AND FUND PARTICIPATION
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
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.
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(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.
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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