EXHIBIT 99-B.8.44
PARTICIPATION AGREEMENT
AMONG
VANGUARD VARIABLE INSURANCE FUND
AND
THE VANGUARD GROUP, INC.
AND
VANGUARD MARKETING CORPORATION
AND
ING LIFE INSURANCE AND ANNUITY COMPANY
THIS AGREEMENT, made and entered into as of the ____ day of March,
2004, by and among VANGUARD VARIABLE INSURANCE FUND (hereinafter the "Fund"), a
Delaware business trust, THE VANGUARD GROUP, INC. (hereinafter the "Sponsor"), a
Pennsylvania corporation, VANGUARD MARKETING CORPORATION (hereinafter the
"Distributor"), a Delaware corporation, and ING LIFE INSURANCE AND ANNUITY
COMPANY (hereinafter the "Company"), a Connecticut corporation, on its own
behalf and on behalf of each segregated asset account of the Company named in
Schedule A hereto as may be amended from time to time (each such account
hereinafter referred to as the "Account").
WHEREAS, the Fund was organized to act as the investment vehicle for
variable life insurance policies and variable annuity contracts to be offered by
separate accounts of insurance companies which have entered into participation
agreements with the Fund and the Sponsor (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio," and representing the interest
in a particular managed portfolio of securities and other assets; and
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WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the assets of each Portfolio of the Fund are managed by
several entities (the "Advisers"), each of which is duly registered as an
investment adviser under the federal Investment Advisers Act of 1940 and any
applicable state securities laws; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated December 19, 1995 (File No. 812-7659), granting
Participating Insurance Companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans") (hereinafter the
"Mixed and Shared Funding Exemptive Order"); and
WHEREAS, the Company has established or will establish one or more
Accounts to fund certain variable annuity or variable life insurance policies
(the "Variable Insurance Products"), which Accounts and Variable Insurance
Products are registered under the 1940 Act and the 1933 Act, respectively; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for each Account on Schedule A hereto, to set aside
and invest assets attributable to the Variable Insurance Products; and
WHEREAS, the Distributor is a wholly-owned subsidiary of the Sponsor,
is registered as a broker dealer with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act")
and is a member in good standing of the National Association of Securities
Dealers, Inc. ("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios on behalf
of each Account to fund the Variable Insurance Products and the Sponsor is
authorized to sell such shares to the Accounts at net asset value; and
WHEREAS, the Company, its affiliate's predecessor in interest, Aetna
Investment Services LLC (now known as ING Financial Advisers, LLC), and the
Sponsor entered into a Defined Contribution Clearance & Settlement Agreement
dated as of April 17, 2001 (the "DCC&S Agreement") which sets forth the
operational provisions governing the purchase and redemption of shares of the
Fund by the Accounts and related matters;
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NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Sponsor and the Distributor agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1 The Sponsor and the Distributor agree to sell to the Company
those shares of the Portfolios of the Fund listed on Schedule B that each
Account orders, in accordance with the DCC&S Agreement.
1.2 The Fund, subject to the provisions of Article X of this
Agreement, agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by the Company and its Accounts on those
days on which the Fund calculates its net asset value pursuant to the rules of
the SEC and the Fund shall use its best efforts to calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the Fund (hereinafter the "Board") may
refuse to sell shares of any Portfolio to any person including, but not limited
to, the Company, or suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board, acting in good faith
and in light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Portfolio.
Further, it is acknowledged and agreed that the availability of shares of the
Fund shall be subject to the Fund's then current prospectus and statement of
additional information, federal and state securities laws and applicable rules
and regulations of the SEC and the NASD.
1.3 The Fund and the Sponsor agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
1.4 The Fund and the Sponsor will not sell Fund shares to any
Participating Insurance Company or its separate account unless an agreement
containing provisions substantially the same as Section 2.6 of Article II and
Sections 6.1 and 6.2 of Article VI of this Agreement is in effect to govern such
sales.
1.5 The Fund agrees to redeem for cash, on the Company's request,
any full or fractional shares of the Fund held by an Account, in accordance with
the DCC&S Agreement. The Fund reserves the right to suspend redemption
privileges or pay redemptions in kind, as disclosed in the Fund's prospectus or
statement of additional information. The Fund agrees to treat the Company like
any other shareholder in similar circumstances in making these determinations.
1.6 The Company agrees to purchase and redeem the shares of each
Portfolio
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offered by the then current prospectus of the Fund and in accordance with the
provisions of such prospectus and the accompanying statement of additional
information.
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1.7 Issuance and transfer of a Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account. The Fund shall furnish to
the Company the CUSIP number assigned to each Portfolio of the Fund identified
in Schedule B hereto.
1.8 The Company hereby elects to receive all income, dividends and
capital gain distributions as are payable on the Portfolio shares in additional
shares of that Portfolio. The Company reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in cash.
The Fund shall notify the Company of the number of shares so issued as payment
of dividends and distributions.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that it is an insurance
company duly organized and in good standing under applicable law; that it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under Connecticut insurance law; that it
has and will maintain the capacity to issue all Variable Insurance Products that
may be sold; and that it is properly licensed, qualified and in good standing to
sell the Variable Insurance Products in all fifty states and the District of
Columbia.
2.2 The Company represents and warrants that the Variable Insurance
Products are registered under the 0000 Xxx.
2.3 The Company represents and warrants it has registered each
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as segregated investment accounts for the Variable Insurance
Products.
2.4 The Fund represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of Connecticut and
all applicable federal and state securities laws and that the Fund is and shall
remain registered under the 0000 Xxx. The Fund shall amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares. The Fund
shall register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Fund, the
Distributor, or the Sponsor.
2.5 The Fund represents and warrants that it is qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and that it will make every effort to maintain
qualification (under Subchapter M or any successor or similar provision) and
(ii) it will notify the Company immediately upon having a reasonable basis for
believing that it ceased to so qualify or that it
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might not so qualify in the future. The Fund acknowledges that any failure to
qualify as a Regulated Investment Company will eliminate the ability of the
subaccounts to avail themselves of the "look through" provisions of Section
817(h) of the Code, and that as a result the Variable Insurance Products will
almost certainly fail to qualify as annuity, endowment or life insurance
contracts under Section 817(h) of the Code.
2.6 The Company represents that the Variable Insurance Products will
be treated as annuity, endowment or life insurance contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it will notify the Fund and the Sponsor immediately upon
having a reasonable basis for believing that the Variable Insurance Products
have ceased to be so treated or that they might not be so treated in the future.
2.7 The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise.
2.8 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of Connecticut and the Fund and the Sponsor represent that their
respective operations are and shall at all times remain in material compliance
with the laws of the State of Connecticut to the extent required to perform this
Agreement.
2.9 The Distributor represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of Connecticut and all applicable state
and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.10 The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with the 1940 Act and any applicable regulations
thereunder.
2.11 The Sponsor represents and warrants that the Advisers to the
Fund are, and the Sponsor shall use its best effort to cause the Advisers to
remain, duly registered in all material respects under all applicable federal
and state securities laws and to perform their obligations for the Fund in
compliance in all material respects with the laws of the State of Connecticut
and any applicable state and federal securities laws.
2.12 The Fund and the Sponsor represent and warrant that all of their
trustees, directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered
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by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimum coverage required currently by Rule 17g-1 under
the 1940 Act or other applicable laws or regulations as may be promulgated from
time to time. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.13 With respect to the Variable Insurance Products, which are
registered under the 1933 Act, the Company represents and warrants that:
(a) ING Financial Advisers, LLC is the principal underwriter for
each such Account and any subaccounts thereof and is a
registered broker-dealer with the SEC under the 1934 Act;
(b) the shares of the Portfolios of the Fund are and will continue
to be the only investment securities held by the corresponding
subaccounts;
(c) the number of Portfolios of the Fund available for investment by
the Accounts will not constitute a majority of the total number
of mutual funds or portfolio selections available for investment
by the Accounts in any Variable Insurance Product that is a
variable annuity; and
(d) with regard to each Portfolio, the Company, if permitted by law,
on behalf of the corresponding subaccount, will:
(i) provide pass-through voting privileges on Portfolio shares
held by the Accounts to all Variable Insurance Product
owners and participants to the extent that the SEC
continues to interpret the 1940 Act as requiring such
privileges;
(ii) distribute to Variable Insurance Product owners and
participants, as appropriate, all proxy materials
furnished by the Fund and vote Portfolio shares in
accordance with instructions received from such Variable
Insurance Product owners and participants;
(iii) to the extent provided by law, with respect to each group
Variable Insurance Product and in each Account, vote
Portfolio shares for which no instructions have been
received in the same proportion as shares for which such
instructions have been received; and
(iv) refrain from substituting shares of another security for
such shares unless the SEC has approved such substitution
in the manner provided in Section 26 of the 1940 Act.
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2.14 The Fund represents that it will comply with all provisions of
the 1940 Act requiring voting by shareholders, and in particular the Fund will
either provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further,
the Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees and
with whatever rules the SEC may promulgate with respect thereto.
ARTICLE III. OFFERING DOCUMENTS AND REPORTS
3.1 The Fund, the Sponsor or their designee shall provide the
Company (at the Sponsor's expense) with as many copies of the Fund's current
prospectus as the Company may reasonably request. The Company shall provide a
copy of the Fund's prospectus to each Variable Insurance Product owner, as
required by law.
3.2 The Fund's prospectus shall state that the statement of
additional information for the Fund is available from the Sponsor (or in the
Fund's discretion, the prospectus shall state that the statement of additional
information is available from the Fund) and the Sponsor (or the Fund), at its
expense, shall print and provide such statement free of charge to the Company
and to any owner of a Variable Insurance Product or prospective owner who
requests such statement. In addition, upon request the Sponsor shall provide the
Company with a PDF file of the Fund's then-current statement of additional
information.
3.3 The Fund, at its own expense, shall provide the Company with
copies of its reports to shareholders, other communications to shareholders,
and, if required by applicable law, proxy material, in such quantity as the
Company shall reasonably require for distributing to Variable Insurance Product
owners. The Fund shall provide to the Company the prospectuses and annual
reports referenced in this Agreement within fifteen (15) days prior to the
Company's obligation to mail, and the Company agrees to provide the Fund with
advance notice of such date. If the documents are not delivered to the Company
within ten (10) days of the Company's obligation to mail, the Fund shall
reimburse the Company for any extraordinary out-of-pocket costs (including, but
not limited to, overtime for printing and mailing).
3.4 (a) If requested by the Company in lieu of the supplies of
Fund prospectuses referenced in Section 3.1, the Fund or the Sponsor shall
provide such documentation (including a final copy of the new prospectus as set
in type at the Fund's or the Sponsor's expense) and other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the prospectus for the Fund is amended) to have the prospectus for the
Variable Insurance Products and the Fund's prospectus printed together in one
document. The Sponsor agrees to reimburse the Company for a portion of the costs
of printing and distributing the prospectus for the Variable Insurance Products
and the Fund's prospectus together in one document; provided, however, that the
Sponsor's
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reimbursement obligation hereunder shall apply only to combined prospectuses
printed for distribution to owners and prospective purchasers of Variable
Insurance Products offering Fund Portfolios as investment options, and shall be
limited to (i) the Sponsor's then-applicable unit cost of printing the portions
of the Fund's prospectus relating to the Portfolios so offered and (ii) the
share of distribution costs corresponding to the proportion of the combined
prospectus represented by the Fund Portfolio prospectuses, respectively.
(b) If requested by the Company in lieu of the supplies of Fund
annual and semi-annual reports referenced in Section 3.3, the Fund or the
Sponsor shall provide such documentation (including a final copy of the new
annual or semi-annual report as set in type at the Fund's or the Sponsor's
expense) and other assistance as is reasonably necessary in order for the
Company to have the semi-annual or annual report for the Variable Insurance
Products and the Fund's semi-annual or annual report, as appropriate, printed
together in one document. The Sponsor agrees to reimburse the Company for a
portion of the costs of printing and distributing the semi-annual or annual
report for the Variable Insurance Products and the Fund's semi-annual or annual
report, as the case may be, together in one document; provided, however, that
the Sponsor's reimbursement obligation hereunder shall apply only to combined
shareholder reports printed for distribution to owners and prospective
purchasers of Variable Insurance Products offering Fund Portfolios as investment
options, and shall be limited to (i) the Sponsor's then-applicable unit cost of
printing the portions of the Fund's semi-annual or annual report relating to the
Portfolios so offered and (ii) the share of distribution costs corresponding to
the proportion of the combined report represented by the Fund Portfolio reports,
respectively.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, its Advisers or the Sponsor is named, at least five
Business Days prior to its use. The Company may use such material in fewer than
five Business Days if it receives the written consent of the Fund or its
designee. No such material shall be used if the Fund or its designee reasonably
objects to such use within five Business Days after receipt of such material. In
connection with the identification of the Portfolios in any such material, the
use of the Sponsor's name or identification of the Portfolios shall be given no
greater prominence than any other mutual fund or portfolio selection offered in
a Variable Insurance Product that is a variable annuity.
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Variable Insurance Products other than the
information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved by the
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Fund or its designee or by the Sponsor, except with the permission of the Fund
or the Sponsor or the designee of either.
4.3 The Fund, Sponsor, Distributor or their designee shall furnish,
or shall cause to be furnished, to the Company or its designee, each piece of
sales literature or other promotional material in which the Company or an
Account is named at least five Business Days prior to its use. No such material
shall be used if the Company or its designee reasonably objects to such use
within five Business Days after receipt of such material.
4.4 The Fund, the Distributor and the Sponsor shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Variable Insurance Products other than the
information or representations contained in a prospectus for the Variable
Insurance Products, as such prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to Variable Insurance Product
owners, or in sales literature or other promotional material approved by the
Company or its designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy
of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares, prior to
or contemporaneously with the filing of each document with the SEC or other
regulatory authorities.
4.6 The Company will provide to the Fund at least one complete copy
of all prospectuses, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemption, requests
for no-action letters, and all amendments to any of the above, that relate to
the Variable Insurance Products or each Account, prior to or contemporaneously
with the filing of such document with the SEC or other regulatory authorities.
4.7 The Company and the Fund shall each promptly inform the other of
the results of any examination by the SEC (or other regulatory authorities) that
relates to the Variable Insurance Products, the Fund or its shares, and the
party that was the subject of the examination shall provide the other party with
a copy of relevant portions of any "deficiency letter" or other correspondence
or written report regarding any such examination.
4.8 The Fund and the Sponsor will provide the Company with as much
notice as is reasonably practicable of any proxy solicitation for any Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in a change to the prospectus for any Account. The Fund and
the Sponsor will cooperate with the Company so as to enable the Company to
solicit voting instructions from owners of Variable Insurance
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Products, to the extent a solicitation is required by applicable law, or to make
changes to its prospectus in an orderly manner.
4.9 For purposes of this Article IV, the phrase "sales literature
and other promotional material" includes, but is not limited to, sales
literature (i.e., any written communication distributed or made generally
available to customers, including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published articles), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and prospectuses, shareholder reports, and
proxy materials.
4.10 Not later than the fifteenth calendar day following the end of
each calendar quarter, the Fund shall provide the Company with the following
information, as of the end of such calendar quarter, for each Portfolio
identified on Schedule B: (a) ten largest holdings, (b) total net assets, (c)
asset allocation, (d) beta, (e) for equity portfolios, equity sector
diversification, and (f) for fixed income portfolios, distribution by issuer and
credit quality. In the event any information provided by the Fund to the Company
pursuant to this Section 4.10 is materially incorrect, and such incorrect
information causes the Company to incur any direct costs for reprinting
Portfolio fact sheets incorporating such information, the Fund shall reimburse
the Company for all such reasonable costs upon receipt from the Company of an
invoice or other statement documenting such costs in reasonable detail.
ARTICLE V. FEES AND EXPENSES
5.1 The Fund and Sponsor shall pay no fee or other compensation to
the Company under this Agreement. Nothing herein shall prevent the parties
hereto from otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Fund and or to the Accounts.
5.2 All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the fees and expenses for the cost of registration and qualification of the
Fund's shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and, except as otherwise provided in
Section 3.4 of this Agreement, reports to shareholders (including the costs of
printing a prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law, and all taxes on
the issuance or transfer of the Fund's shares.
5.3 Except as otherwise provided in Section 3.4 of this Agreement,
the Fund shall bear the expenses of printing, and the Company shall bear the
expenses of distributing, the
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Fund's prospectus to owners of Variable Insurance Products issued by the
Company. The Fund shall bear the expenses of printing and distributing the
Fund's proxy materials (to the extent such proxy solicitation is required by
law) and reports to owners of Variable Insurance Products.
ARTICLE VI. DIVERSIFICATION
6.1 The Fund will at all times invest money from the Variable
Insurance Products in such a manner as to ensure that the Variable Insurance
Products will be treated as variable contracts under the Code and the
regulations issued thereunder. Without limiting the scope of the foregoing, the
Fund and the Sponsor represent and warrant that each Portfolio of the Fund will
meet the diversification requirements of Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for endowment
or life insurance contracts and any amendments or other modifications to such
Section or Regulations, as if those requirements applied directly to each such
Portfolio. In the event of a breach of this Article VI by the Fund, it will take
all reasonable steps (a) to notify Company of such breach and (b) to adequately
diversify, each Portfolio of the Fund so as to achieve compliance within the
grace period afforded by Regulation 817-5.
6.2 The Fund and the Sponsor represent that each Portfolio will
elect to be qualified as a Regulated Investment Company under Subchapter M of
the Code and they will maintain such qualification (under Subchapter M or any
successor or similar provision).
ARTICLE VII. INDEMNIFICATION
7.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund
and each trustee of the Board and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act, the
Sponsor and the Distributor (collectively, the "Indemnified Parties"
for purposes of this Section 7.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including legal and
other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition
of the Fund's shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact
contained in the registration statement or
prospectus for the Variable Insurance Products or
contained in the contract or policy or sales
literature for the Variable Insurance Products (or
any
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amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, provided that
this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission
or such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Company by or on behalf of the Fund
for use in the registration statement or prospectus
for the Variable Insurance Products or in the
contract or policy sales literature (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Variable Insurance
Products or the Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature of the
Fund not supplied by the Company, or persons under
its control) or unlawful conduct of the Company or
persons under its control, with respect to the sale
or distribution of the Variable Insurance Products
or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus, or sales
literature of the Fund (or any amendment or
supplement thereto), or the omission or alleged
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading, if such statement
or omission was made in reliance upon information
furnished to the Fund by or on behalf of the
Company; or
(iv) result from any failure by the Company to provide
the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any material breach of this Agreement by the
Company;
as limited by and in accordance with the provisions of Section 7.1(b)
and 7.1(c) hereof.
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(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Fund, whichever
is applicable.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Company in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on a designated agent), but
failure to notify the Company of any such claim shall not relieve the
Company from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against
the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Company to such a party of the Company's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be liable
to such party under this agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Indemnified Parties will promptly notify the Company
of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the
Variable Insurance Products or the operation of the Fund.
7.2 Indemnification by the Sponsor
(a) The Sponsor agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the
1933Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sponsor) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or
14
settlements are related to the sale or acquisition of the Fund's shares
or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement or
prospectus or sales literature of the Fund (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, provided that
this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission
or such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Sponsor or Fund by or on behalf of
the Company for use in the registration statement or
prospectus for the Fund or in sales literature (or
any amendment or supplement thereto) or otherwise
for use in connection with the sale of the Variable
Insurance Products or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature for the
Variable Insurance Products not supplied by the
Sponsor or persons under its control) or unlawful
conduct of the Fund, the Advisers or persons under
their control, with respect to the sale or
distribution of the Variable Insurance Products or
Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or sales
literature covering the Variable Insurance Products
(or any amendment or supplement thereto), or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements
therein not misleading, if such statement or
omission was made in reliance upon information
furnished to the Company by or on behalf of the
Fund; or
(iv) result from any failure by the Sponsor or the Fund
to provide the services and furnish the materials
under the terms of this Agreement (including a
failure to comply with the
15
diversification requirements specified in Article VI
of this Agreement); or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Sponsor or the Fund in this Agreement or arise out
of or result from any other material breach of this
Agreement by the Sponsor or the Fund;
as limited by and in accordance with the provisions of Sections 7.2(b)
and 7.2(c) hereof.
(b) The Sponsor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company or the
Accounts, whichever is applicable.
(c) The Sponsor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Sponsor in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of any such service on any designated
agent), but failure to notify the Sponsor of any such claim shall not
relieve the Sponsor from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In any case any such action
is brought against the Indemnified Parties, the Sponsor will be
entitled to participate, at its own expense, in the defense thereof.
The Sponsor also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice
from the Sponsor to such party of the Sponsor's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Sponsor will not be
liable to such party under this Agreement for any legal or other
expenses subsequently incurred by each party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(d) The Company agrees promptly to notify the Sponsor of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Variable Insurance Products or the operation of each Account.
16
7.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the
Company, and each of its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Fund) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, at common law
or otherwise, insofar as such losses, claims damages, liabilities or
expenses (or action in respect thereof) or settlements resulting from
the gross negligence, bad faith or willful misconduct of the Board or
any member thereof, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to
provide the services and furnish the materials under
the terms of this Agreement (including a failure to
comply with the diversification requirements
specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of
any representation and/or warranty made by the Fund
in this Agreement or arise out of or result from any
other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b)
and 7.3(c) hereof.
(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company, the
Fund, the Sponsor or each Account, whichever is applicable.
(c) The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Fund in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure
to notify the Fund of any such claim shall not relieve the Fund from
any liability which it may have to the Indemnified Party against whom
such action is brought otherwise
17
than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Fund will be
entitled to participate, at its own expense, in the defense thereof.
The Fund also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice
from the Fund to such party or the Fund's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Fund will not be
liable to such party independently in connection with the defense
thereof other than reasonable costs of litigation.
(d) The Company and the Sponsor agree promptly to notify the
Fund of the commencement of any litigation or proceedings against it or
any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the Variable Insurance Products,
with respect to the operation of an Account, or the sale or acquisition
of shares of the Fund.
7.4 Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sponsor) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related
to the sale or acquisition of the Fund's shares or the Variable
Insurance Products and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement or
prospectus or sales literature of the Fund (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, provided that
this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission
or such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Distributor or the Fund by or on
behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales
literature (or any amendment or supplement thereto)
or
18
otherwise for use in connection with the sale of the
Variable Insurance Products or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature for the
Variable Insurance Products not supplied by the
Distributor or persons under its control) or
unlawful conduct of the Fund, the Advisers or
persons under their control, with respect to the
sale or distribution of the Variable Insurance
Products or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or sales
literature covering the Variable Insurance Products
(or any amendment or supplement thereto), or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements
therein not misleading, if such statement or
omission was made in reliance upon information
furnished to the Company by or on behalf of the
Fund; or
(iv) result from any failure by the Distributor or the
Fund to provide the services and furnish the
materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Distributor or the Fund in this Agreement or arise
out of or result from any other material breach of
this Agreement by the Distributor of the Fund;
as limited by and in accordance with the provisions of Sections 7.4(b)
and 7.4(c) hereof.
(b) The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise
be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the
Company or the Accounts, whichever is applicable.
19
(c) The Distributor shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Distributor in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of any such service on any
designated agent), but failure to notify the Distributor of any such
claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In any
case any such action is brought against the Indemnified Parties, the
Distributor will be entitled to participate, at its own expense, in the
defense thereof. The Sponsor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Distributor to such party of the
Distributor's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party
under this Agreement for any legal or other expenses subsequently
incurred by each party independently in connection with the defense
thereof other than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Distributor of
the commencement of any litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale of
the Variable Insurance Products or the operation of each account.
ARTICLE VIII. POTENTIAL CONFLICTS AND COMPLIANCE WITH
MIXED AND SHARED FUNDING EXEMPTIVE ORDER
8.1 The Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners or by contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to disregard
the voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
8.2 The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the
20
Mixed and Shared Funding Exemptive Order, by providing the Board with all
information reasonably necessary for the Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to inform the
Board whenever contract owner voting instructions are to be disregarded. Such
responsibilities shall be carried out by the Company with a view only to the
interests of its contract owners.
8.3 If it is determined by a majority of the Board, or a majority of
its directors who are not interested persons of the Fund, the Distributor, the
Sponsor, the Advisers or any sub-adviser to any of the Portfolios (the
"Independent Directors"), that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
Independent Directors), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (a) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Fund, or submitting the
question whether such segregation should be implemented to a vote of all
affected contract owners and, as appropriate, segregating the assets of any
appropriate group (I.E., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (b) establishing a new
registered management investment company or managed separate account.
8.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the Account's
investment in the Fund and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Independent Directors. Any such withdrawal and termination must take place
within one hundred eighty (180) days after the Fund gives written notice that
this provision is being implemented, and until the end of that one hundred
eighty-day period the Sponsor and the Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
8.5 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the Account's investment in the Fund and terminate this Agreement
within six months after the Board informs the Company in writing that it has
determined that such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the Independent Directors. Until the end of the foregoing
six-month period, the Sponsor and the Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
21
8.6 For purposes of Sections 8.3 through 8.6 of this Agreement, a
majority of the Independent Directors shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Variable
Insurance Products. The Company shall not be required by Section 8.3 to
establish a new funding medium for the Variable Insurance Products if an offer
to do so has been declined by vote of a majority of contract owners affected by
the irreconcilable material conflict. In the event that the Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the Independent
Directors.
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Connecticut.
9.2 This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant, and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. TERMINATION
10.1 This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by sixty (60)
days' advance written notice delivered to the other parties; or
(b) termination by the Company by one week's advance written
notice to the Fund and the Sponsor with respect to any Portfolio based
upon the Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Variable Insurance
Products; or
(c) termination by the Company immediately upon written notice
to the Fund and the Sponsor with respect to any Portfolio in the event
any of the Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of
the Variable Insurance Products issued or to be issued by the Company;
or
22
(d) termination by the Company immediately upon written notice
to the Fund and the Sponsor with respect to any Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund may fail
to so qualify (in the event of such termination, the Company shall
withdraw all assets allocable to the separate accounts from the
Portfolio and shall reinvest such assets in a different investment
medium, including, but not limited to, another Portfolio of the Fund);
or
(e) termination by the Company immediately upon written notice
to the Fund and the Sponsor with respect to any Portfolio in the event
that such Portfolio fails to meet the diversification requirements as
specified in Article VI hereof (in the event of such termination, the
Company shall withdraw all assets allocable to the separate accounts
from the Portfolio and shall reinvest such assets in a different
investment medium, including, but not limited to, another Portfolio of
the Fund); or
(f) termination by the Fund, the Sponsor, or the Distributor
by written notice to the Company, if any of the Fund, the Sponsor, or
the Distributor shall determine, in its sole judgment exercised in good
faith, that the Company and/or its affiliated companies has suffered a
material adverse change in its business, operations, or financial
condition since the date of this Agreement or is the subject of
material adverse publicity; or
(g) termination by the Company by written notice to the Fund
and the Sponsor, if the Company shall determine, in its sole judgment
exercised in good faith, that either the Fund, the Sponsor, or the
Distributor has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or
is the subject of material adverse publicity; or
(h) termination by the Company immediately upon written notice
to the Fund and the Sponsor, upon the institution of formal proceedings
against the Fund, the Sponsor or the Distributor by the NASD, the SEC
or any other regulatory body with appropriate jurisdiction; or
(i) termination by the Fund or the Sponsor immediately upon
written notice to the Company, upon the institution of formal
proceedings against the Company by the NASD, the SEC or any other
regulatory body with appropriate jurisdiction; or
(j) assignment of this Agreement by any party without the
written consent of all other parties hereto.
23
10.2 Notwithstanding any termination of this Agreement, the Fund and
the Sponsor shall, at the option of the Company, continue to make available
shares of the Fund pursuant to the terms and conditions of this Agreement, for
all Variable Insurance Products in effect on the effective date of termination
of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts shall be
permitted to reallocate investments in the Fund, redeem investments in the Fund
and/or invest in the Fund upon the making of additional purchase payments under
the Existing Contracts.
10.3 The Company shall not redeem Fund shares attributable to the
Variable Insurance Products (as opposed to Fund shares attributable to the
Company's assets held in the Accounts) except (a) as necessary to implement
Variable Insurance Product owner initiated or approved transactions, or (b) as
required by state and/or federal laws or regulations or judicial or other legal
precedent of general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the Fund and
the Sponsor the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Fund and the Sponsor) to the effect that any
redemption pursuant to clause (b) above is a Legally Required Redemption.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to the Fund: Vanguard Variable Insurance Fund
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxx
If to the Sponsor: The Vanguard Group, Inc.
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
If to the Distributor: Vanguard Marketing Corporation
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
24
If to the Company: ING Life Insurance and Annuity Company
000 Xxxxxxxxxx Xxxxxx, XX 00
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxxxx
ARTICLE XII. MISCELLANEOUS
12.1 It is understood and stipulated that neither the shareholders of
any Portfolio nor the officers or trustees of the Fund shall be personally
liable hereunder.
12.2 Subject to the requirements of the legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Variable Insurance Products and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not (unless it has obtained the express
written consent of the affected party) disclose, disseminate or utilize such
names and addresses and other confidential information until such time as it may
come into the public domain.
12.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
12.6 Each party hereto shall cooperate with each party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8 This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto.
25
12.9 The Company shall furnish, or cause to be furnished, to the Fund
or its designee copies of the Company's Annual Financial Statement upon request.
12.10 This Agreement, including any Schedule hereto, may be amended or
modified only by written instrument, executed by duly authorized officers of the
parties.
12.11 It is understood and agreed by the parties that this Agreement
is not an exclusive arrangement in any respect.
26
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified above.
VANGUARD VARIABLE INSURANCE FUND
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE VANGUARD GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
VANGUARD MARKETING CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ING LIFE INSURANCE AND ANNUITY COMPANY
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
27
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
NAME OF SEPARATE ACCOUNT CONTRACTS FUNDED BY SEPARATE ACCOUNT
------------------------ ------------------------------------
Variable Annuity Account B of ING Life
Insurance and Annuity Company
Variable Annuity Account C of ING Life
Insurance and Annuity Company
Variable Life Account B of ING Life
Insurance and Annuity Company
Variable Life Account C of ING Life
Insurance and Annuity Company
28
SCHEDULE B
PORTFOLIOS
The following Portfolios of the Vanguard Variable Insurance Funds shall
be made available as investments underlying the Variable Insurance Products,
subject to the limitations set forth in Section 2.13(c) hereof:
Money Market Portfolio
Total Bond Market Index Portfolio
High-Yield Bond Portfolio
Short-Term Corporate Portfolio
Balanced Portfolio
Diversified Value Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth Portfolio
Mid-Cap Index Portfolio
REIT Index Portfolio
Small Company Growth Portfolio
International Portfolio
Total Stock Market Index Portfolio
Capital Growth Portfolio
29
