Exhibit 99.B(e)(2)
ING FINANCIAL ADVISERS, LLC
DISTRIBUTION SERVICES AGREEMENT
November 15, 2002
Golden American Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
We serve as distributor of the Adviser Class of shares ("Shares") of the
investment portfolios (each a "Portfolio" and collectively the "Portfolios") of
ING Partners, Inc. (the "Fund") listed on Schedule A attached to this Agreement.
The Fund offers Shares in accordance with the terms and conditions contained in
the Prospectuses (and Statements of Additional Information ("SAIs") incorporated
by reference thereto) relating to those Shares.
In connection with the offering of Shares, you agree to assist in the
distribution of Shares on the following terms and conditions:
1. You are hereby authorized to use your best efforts to offer and sell
the Shares appearing on Schedule A hereto as such Schedule shall be amended from
time to time consistent with the provisions of this Agreement. In connection
with those activities, you are also hereby authorized to distribute the
promotional and sales materials, Prospectuses, SAIs (upon request by a
purchaser), shareholder reports and other materials relevant to the Shares and
to perform, the shareholder services which you have agreed to provide in respect
of any such Shares. All such activities shall be performed in compliance with
the conditions and procedures set forth in the relevant Prospectuses and SAIs,
including, without limitation, the public offering price then in effect. You
hereby agree to pay all direct and indirect expenses or costs we may incur under
the Distribution Agreement between us and the Fund arising in connection with
any promotional or sales literature (including Prospectuses and SAIs) furnished
to you in any offering of the Shares, as well as expenses of advertising and all
legal expenses in connection with the matters covered by this sentence.
2. No person is authorized to make any representation concerning the Fund
or the Shares except those contained in the Prospectuses and related SAIs and in
such printed information as we may subsequently prepare. No person is authorized
to distribute any sales literature or advertisements as those terms are defined
under Section 2210 of the Conduct Rules of the National Association of
Securities Dealers Regulation, Inc. ("NASD") relating to the Fund without our
prior written approval.
3. Applicable selling commissions, concessions or other fees (including,
without limitation, fees paid to us under a Plan of Distribution with respect to
the Shares pursuant to Rule 12b-1 under the 1940 Act and reallocated to you) to
which you are entitled for the provision of the services to be rendered under
this Agreement are those specified on attached Schedule A to this Agreement and
in the current Prospectus of such Shares, as such Schedule and Prospectuses
shall be amended from time to time. These amounts are subject to change without
notice by us and comply with any changes in regulatory requirements.
4. You agree that you will not combine customer orders to reach
breakpoints in commissions for any purposes whatsoever unless authorized by the
then current Prospectus in respect of Shares or by us in writing. You also agree
that you will place orders immediately upon their receipt and will not withhold
any order so as to profit therefrom. In determining the amount payable to you
hereunder, we reserve the right to exclude any sales which we reasonably
determine are not made in accordance with the terms of the relevant Prospectus
and provisions of this Agreement.
5. You agree to comply with the provisions contained in the Securities
Act of 1933 governing the distribution of Prospectuses to persons to whom you
offer Shares under this Agreement. You further agree to deliver, upon our
request, copies of any amended Prospectus to purchasers, if any, whose Shares
you are holding as record owner and to deliver to such customers copies of the
annual and interim reports and proxy solicitation materials of the Fund. We
agree to furnish to you as many copies of the Prospectuses and related SAIs,
annual and interim financial reports and proxy solicitation materials as you may
reasonably request.
6. For all purposes of this Agreement you will be deemed to be an
independent contractor and will have no authority to act as agent for us or the
Fund in any manner or in any respect. Except for actions taken in reliance on
information provided by the distributor or the Fund or otherwise caused by the
negligence of the distributor or the Fund, you agree to and do release,
indemnify and hold us, the Fund and its transfer agent and our and their
respective officers, directors, agents, employees and affiliates harmless from
and against any and all direct or indirect liabilities, losses, claims, demands
and expenses (including, without limitation, reasonable attorneys' fees)
resulting from requests, directions, actions, negligence or inactions of or by
you or your officers, employees, or agents regarding your responsibilities under
this Agreement or the purchase, redemption, transfer or registration of Shares
by or on behalf of customers. This indemnification shall survive the termination
of this Agreement.
7. You shall not make offers or sales of Shares in any state or
jurisdiction where the particular Shares are not qualified for sale under or
exempt from the requirements of the securities laws of the state or other
jurisdictions where the proposed offer or sale is to be made. You also agree
that you will not offer or sell any Shares to persons in any jurisdiction in
which you are not properly licensed and authorized to make such offers or sales.
8. The Fund shall have full authority to take such action as it deems
advisable in respect of all matters pertaining to the offering of the Shares,
including the right, in its discretion, to reject an order for Shares and,
without notice, to suspend sales or withdraw the offering of Shares of any of
the Portfolios entirely.
9. You will (i) maintain all records required by law (including records
detailing the services you provide in return for the fees to which you are
entitled under this Agreement) and, upon request by the Fund or us, promptly
make such of these records available to the Fund or us, as the case may be, as
the Fund or we may reasonably request in connection with its operations; and
(ii) promptly notice the Fund and us if you experience any difficulty in
maintaining the records described in the foregoing clauses in an accurate and
complete manner.
10. We and the Fund shall be under no liability to you except for lack of
good faith and for obligations expressly assumed by us hereunder. In carrying
out your obligations, you agree to act in good faith. Nothing contained in this
Agreement is intended to operate as a
2
waiver by us or you of compliance with any provision of the NASD Conduct Rules,
or any federal or state securities laws or the rules and regulations adopted
thereunder.
11. This Agreement shall become effective only when accepted and signed by
you and may be amended only by a written instrument signed by you and us. This
Agreement may be terminated as provided above and by either party, without
penalty, upon notice to the other party.
12. All communications to us should be sent to: ING Financial Advisers,
LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000-0000.
Any notice to you shall be duly given if mailed or telegraphed to you at the
address specified by you below.
13. You hereby represent and warrant that you are duly authorized by all
necessary action, approval or authorization to enter into this Agreement and
that, if a corporation, partnership or other entity, you are duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which you are organized.
14. This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof and supersedes any and all
agreements between the parties relating to said subject matter. This Agreement
and all the rights and obligations of the parties hereunder shall be governed by
and construed under the laws of the State of Connecticut.
ING FINANCIAL ADVISERS, LLC
Date: 11-19-02 By: /s/ Xxxxxxxxx Xxxxxx
--------------------- ------------------------------
Accepted and Agreed to:
Name: Golden American Life Insurance Company
Address: 0000 Xxxxxxxx Xxxxx
City: West Xxxxxxx State: PA Zip: 19380
Telephone Number: 000-000-0000
Name of Authorized Officer: Xxxxxxxx X. Xxxxx
Title: Executive Vice President, General Counsel and Assistant Secretary
Date: 11-21-02 Authorized Officer Signature /s/ Xxxxxxxx X. Xxxxx
----------------------- -----------------------
3
SCHEDULE A TO DISTRIBUTION SERVICES AGREEMENT
You will assist in the distribution of the Adviser Class of Shares of
Common Stock, par value $.001 of ING Partners, Inc. (the "Shares") and, in
addition to other fees to which you may be entitled, shall receive fees at an
annual rate set forth below in respect of the following Shares payable pursuant
to Rule 12b-1 under the Investment Company Act of 1940.*
Effective 1/1/02:
MFS Emerging Equities Portfolio - Adviser Class 0.25%
MFS Research Growth Portfolio - Adviser Class 0.25%
MFS Capital Opportunities Portfolio - Adviser Class 0.25%
Xxxxxxx International Growth Portfolio - Adviser Class 0.25%
X. Xxxx Price Growth Equity Portfolio - Adviser Class 0.25%
Xxxxx Growth Portfolio - Adviser Class 0.25%
Xxxxx Aggressive Growth Portfolio - Adviser Class 0.25%
OpCap Balanced Value Portfolio - Adviser Class 0.25%
Brinson Tactical Asset Allocation Portfolio - Adviser Class 0.25%
DSI Enhanced Index Portfolio - Adviser Class 0.25%
Xxxxxxx Sachs Capital Growth Portfolio - Adviser Class 0.25%
Salomon Brothers Capital Portfolio - Adviser Class 0.25%
Salomon Brothers Investors Value Portfolio - Adviser Class 0.25%
Effective 5/1/02:
American Century Small Cap Value Portfolio - Adviser Class 0.25%
Baron Small Cap Growth Portfolio - Adviser Class 0.25%
JPMorgan Mid Cap Value Portfolio - Adviser Class 0.25%
PIMCO Total Return Portfolio - Adviser Class 0.25%
Xxx Xxxxxx Xxxxxxxx Portfolio - Adviser Class 0.25%
MFS Global Growth Portfolio - Adviser Class 0.25%
----------
* Rule 12b-1 fees will be paid quarterly within one month following the end
of each calendar quarter after you supply services to your customers
who purchase Shares. These fees are based on the average daily net
asset value of the Shares during the period covered by the payment.
You will not receive payment of any fees for any quarterly period if
you are entitled to less than $1,000. To the extent that we are
required to waive any portion of the Rule 12b-1 fees payable to us
by Portfolio Partners, Inc., you shall waive a proportionate share
of the Rule 12b-1 fees payable to you hereunder.
