Exhibit 99.B(h)(5)(L)
FORM OF
PARTICIPATION AGREEMENT
AMONG
ING INVESTORS TRUST
AND
ING INSURANCE COMPANY OF AMERICA
AND
DIRECTED SERVICES, INC.
THIS AGREEMENT, made and entered into effective May 1, 2004, among ING
INSURANCE COMPANY OF AMERICA (the "Company"), a life insurance company organized
under the laws of Florida, on its own behalf and on behalf of each separate
account of the Company set forth on SCHEDULE A attached hereto, as such Schedule
may be amended from time to time (each such account hereinafter referred to as
the "Separate Accounts"), ING INVESTORS TRUST (the "Trust") an open-ended
management investment company and business trust organized under the laws of the
Commonwealth of Massachusetts, and DIRECTED SERVICES, INC. (the "Distributor"),
a corporation organized under the laws of the State of New York.
WHEREAS, the Trust is an open-end diversified management investment
company and is available to act as the investment vehicle for (a) separate
accounts established for variable life insurance policies and variable annuity
contracts (collectively, the "Contracts") to be offered by affiliated and/or
unaffiliated insurance companies which have entered into Participation
Agreements with the Trust and the Distributor (the "Participating Insurance
Companies"), (b) qualified pension and retirement plans held outside the
separate account context which meet the definition of retirement plans under
Sections 401 and 457 of the Internal Revenue Code and custodial accounts under
Sections 403(b)(7), 408 and 408A of the Internal Revenue Code (collectively
referred to herein as "Qualified Plan(s)") and (c) certain investment advisers;
and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each designated a "Fund" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, the Trust may rely on an order ("Aetna Variable Fund, ET AL
Investment Company Act Rel. No. 23616 (December 21, 1998) from the Securities
and Exchange Commission ("SEC"), granting the variable annuity and variable life
insurance separate accounts participating in the Trust exemptions from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company
Act of 1940, as amended (the "1940 Act"), and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of any
current or future series of the Trust to be sold to and held by variable annuity
and variable life insurance separate
accounts of the Participating Insurance Companies, certain investment advisers
and qualified pension and retirement plans (the "Mixed and Shared Funding
Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain of the
Contracts (except those Contracts for which no such registration is required)
under the 1933 Act and applicable state insurance law; and
WHEREAS, the Company represents herein that each Separate Account is a
duly organized, validly existing separate account, which was established by
resolution of the Board of Directors of the Company to set aside and invest
assets attributable to one or more of the Contracts; and
WHEREAS, the Company has registered or will register the Separate
Accounts (except those Separate Accounts for which no such registration is
required) as unit investment trusts under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker-dealer with the 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.
(the "NASD"); and
WHEREAS, to the extent permitted by applicable laws and regulations, the
Separate Account intends to purchase shares in certain Funds as set forth on
SCHEDULE B attached hereto, as it may be amended from time to time by mutual
written agreement ("Authorized Funds"), on behalf of each Separate Account.
NOW, THEREFORE, in consideration of the promises herein, the Company, the
Trust and the Distributor agree as follows:
ARTICLE I
SALE OF ING INVESTORS TRUST
1.1. The Distributor agrees, subject to the Trust's rights under
Section 1.2 and otherwise under this Agreement, to sell to the Separate Account
those Trust shares representing interests in Authorized Funds which each
Separate Account orders, executing such orders on a daily basis at the net asset
value next computed after receipt by the Trust or its designee of the order for
the shares of the Trust. For purposes of this Section 1.1, the Company shall be
the designee of the Trust for receipt of such orders from each Separate Account
and receipt by such designee shall constitute receipt by the Trust; provided
that the Trust receives notice of such order by 10:00 a.m., Eastern Time, on the
next following Business Day. "Business Day" shall mean any day on which the New
York Stock Exchange ("NYSE") is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC. The initial
Authorized Funds are set forth in SCHEDULE B, as such schedule is amended from
time to time.
2
1.2. The Trust agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by the Company and its
Separate Accounts on those days on which the Trust calculates its net asset
value pursuant to the rules of the SEC and the Trust shall use reasonable
efforts to calculate such net asset value on each day the NYSE is open for
trading. Notwithstanding the foregoing, the Trustees of the Trust (the
"Trustees") may refuse to sell shares of any Authorized Fund to the Company or
any other person, or suspend or terminate the offering of shares of any
Authorized Fund if such action is required by law or by regulatory authorities
having jurisdiction over the Trust or if the Trustees determine, in the exercise
of their fiduciary responsibilities, that to do so would be in the best
interests of shareholders.
1.3. The Trust and the Distributor agree that shares of the Trust will
be sold only to separate accounts, certain investment advisers, qualified
pension and retirement plans and other persons who are permissible investors
consistent with the Separate Accounts meeting the requirements of Treas.
Reg. 1.817-5.
1.4. The Trust shall redeem its shares in accordance with the terms of
its then-current prospectus. For purposes of this Section 1.4, the Company shall
be the designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust receives notice of such request for redemption by
10:00 a.m., Eastern Time, on the next following Business Day.
1.5. All parties shall comply with the relevant provisions of Section
22c of the Investment Company Act and all rules promulgated thereunder. Orders
received and accepted by the Company or its Separate Accounts prior to the close
of regular trading on the Exchange (the "Close of Trading") on any given
Business Day shall be transmitted in such a manner to ensure those orders are
traded at the net asset value determined as of the Close of Trading on the
Business Day the order was received. Orders received and accepted by the Company
or its Separate Accounts after the close of regular trading on the Exchange (the
"Close of Trading") on any given Business Day shall be transmitted in such a
manner to ensure those orders are traded at the net asset value determined as of
the Close of Trading on the next Business Day.
1.6. The Company shall pay for the Trust shares on the next Business
Day after an order to purchase the Trust shares is made in accordance with the
provisions of Article I hereof. Payment shall be in federal funds transmitted by
wire.
1.7. Issuance and transfer of the Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or to any Separate
Account. Shares ordered from the Trust will be recorded as instructed by the
Company to the Distributor in an appropriate title for each Separate Account or
the appropriate sub-account of each Separate Account.
1.8. The Distributor shall furnish prompt notice (by wire or telephone,
followed by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on the Trust's shares.
The Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Authorized Fund shares in additional shares
of that Authorized Fund. The Company reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in cash.
The
3
Distributor shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.9. The Distributor shall make the net asset value per share for each
Authorized Fund available to the Company on a daily basis as soon as reasonably
practical after the Trust calculates its net asset value per share, and each of
the Trust and the Distributor shall use its reasonable best efforts to make such
net asset value per share available by 6:00 p.m., Eastern time, but in no event
later than 7:00 p.m., Eastern time, each Business Day.
1.10. Any error in the calculation of the net asset value, dividend and
capital gain information greater than or equal to $0.01 per share of the Trust's
shares, shall be reported immediately upon discovery to the Company. Any error
of a lesser amount shall be corrected in the next Business Day's net asset value
per share for the Trust. Any such notice will state for each day for which an
error occurred the incorrect price, the correct price and, to the extent
communicated to the Trust's shareholders, the reason for the price change. The
Company may send this notice or a derivation thereof (so long as such derivation
is approved in advance by the Distributor) to contract owners or participants
whose accounts are affected by the price change. The parties will negotiate in
good faith to develop a reasonable method for effecting such adjustments. The
Trust shall provide the Company, on behalf of the Separate Account or the
appropriate subaccount of each Separate Account, with a prompt adjustment to the
number of shares purchased or redeemed to reflect the correct share net asset
value.
For purposes of this Section 1.10, the Trust or the Distributor shall be liable
to the Company for any amount the Company is required to pay to Contract owners
or participants due to (i) an incorrect calculation of a Fund's daily net asset
value, dividend rate, or capital gain distribution rate, in accordance with the
Trust's procedures; or (ii) incorrect or late reporting of the daily net asset
value or capital gain distribution rate of an Authorized Fund, in accordance
with the Trust's procedures, upon written notification by the Company, with
supporting data, to the Trust, provided, however, that neither the Trust nor the
Distributor shall be liable for any information provided to the Company pursuant
to this Agreement which information is based on inaccurate information supplied
by the Company to the Trust or any of its affiliates, or for any incorrect or
late reporting because of acts of God or systems or mechanical failures over
which the Trust, or the Distributor or the investment adviser to the Trust have
no reasonable control; and provided further that the Distributor and Officers of
the Trust shall in good faith discuss with the Company the bearing of any
expenses described in (i) and (ii) above for which the Trust or Distributor are
not liable under this provision. In addition, the Trust or the Distributor shall
be liable to the Company for systems and out of pocket costs incurred by the
Company in making a Contract owner's or a participant's account whole, if such
costs or expenses are a result of the Trust'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. Eastern time of the next
business day after releasing such incorrect information. If a mistake is caused
in supplying such information or confirmations, which results in a
reconciliation with incorrect information, the amount required to make a
Contract owner's or a participant's account whole shall be borne by the party
providing the incorrect information, regardless of when the error is corrected.
1.11. The parties may agree to provide pricing information, execute
orders and wire payments for purchases and redemptions through National
Securities Clearing Corporation's
4
Fund/SERV system in which case such activities will be governed by the
provisions set forth in an Exhibit to this Agreement.
1.12. The Company and its Separate Accounts acknowledges and understands
the Funds are intended for long-term investment and not as short-term trading
vehicles. Accordingly, organizations or individuals that use market timing
investment strategies should not purchase shares of the Funds. The Funds reserve
the right, in their sole discretion and without prior notice, to reject,
restrict or refuse purchase orders whether directly or by exchange, including
orders that have been accepted by a shareholder's or retirement plan
participant's intermediary, that the Funds determine not to be in the best
interest of the Funds. The Funds' Board of Directors/Trustees have adopted
policies and procedures designed to deter frequent, short-term trading in shares
of the Funds. Consistent with this policy, the Funds monitor trading activity.
The Funds reserve the right to modify the frequent trading policy at any time
without prior notice, depending on the needs of the Funds and/or state or
federal regulatory requirements. If an activity is identified as problematic
after further investigation, the Funds reserve the right to take any necessary
action to deter such activity. Such action may include, but not be limited to:
rejecting additional purchase or exchange orders; extending settlement of a
transaction up to seven days; rejecting all trades from broker-dealers or their
registered representatives suspected of violating the Funds' frequent trading
policy; or termination of the selling group agreement or other agreement with
broker-dealers or other financial intermediaries associated with frequent
trading of the Fund. Company and its Separate Accounts shall make all reasonable
efforts to deter market timing activity and will notify ING Funds immediately if
it becomes aware of any market timing activity. Company and its Separate Account
shall cooperate with ING Funds in their attempts to prohibit market timing.
1.13. Company acknowledges and agrees that it is solely responsible and
liable for the conduct of any sub-contractor or party it employs to fulfill
obligations under this Agreement. It is the Company's sole responsibility to
ensure that these sub-contractors comply with the terms of this Agreement and
applicable laws and regulations. Company also acknowledges that it shall be
financially responsible for the actions of sub-contractors and shall reimburse
the Trust and/or Distributors directly for any actions of the sub-contractors
that violate this Agreement. It shall be Company's responsibility to seek
reimbursement from the sub-contractors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that:
(a) at all times during the term of this Agreement, the
Contracts are or will be registered (except those Contracts which are not
registered because they are properly exempt from registration under the 1933 Act
or will be offered exclusively in transactions that are properly exempt from
registration under the 0000 Xxx) under the 1933 Act and the 1940 Act; the
Contracts will be issued and sold in compliance in all material respects with
all applicable laws and the sale of the Contracts shall comply in all material
respects with state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale thereof as a
separate account
5
under applicable law and has registered or, prior to any issuance or sale of the
Contracts, will register each Separate Account (except those Separate Accounts
which have not been registered in proper reliance upon an exclusion from
registration under the 0000 Xxx) as a unit investment trust in accordance with
the provisions of the 1940 Act to serve as a segregated investment account for
the Contracts;
(b) the Contracts are currently treated as endowment, annuity
or life insurance contracts, under applicable provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), and that it will make every effort to
maintain such treatment and that it will notify the Trust and the Underwriter
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future; and
(c) all notices to the Trust of the purchase and/or redemption
of the Trust shares by each Separate Account shall be accurate.
2.2. The Trust represents and warrants that:
(a) at all times during the term of this Agreement, the Trust
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold by the Trust to the Company in compliance
with all applicable laws, subject to the terms of Section 2.4 below, and the
Trust is and shall remain registered under the 1940 Act. The Trust 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 Trust 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 Trust or the Distributor in connection with their sale by the Trust to
the Company and only as required by Section 2.4;
(b) each Authorized Fund is currently qualified as a Regulated
Investment Company under Subchapter M of the Code, and that the Trust will use
its best efforts to maintain such qualification (under Subchapter M or any
successor provision) and that it will notify the Company immediately upon having
a reasonable basis for believing that an Authorized Fund has ceased to so
qualify or that it might not so qualify in the future; and
(c) the Trust is lawfully organized and validly existing under
the laws of the Commonwealth of Massachusetts and that it does and will comply
in all material respects with the 1940 Act.
2.3. 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 Trust shares
in accordance with all applicable securities laws applicable to it, including
without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.4. Notwithstanding any other provision of this Agreement, the Trust
shall be responsible for the registration and qualification of its shares and of
the Trust itself under the laws of any jurisdiction only in connection with the
sale of shares directly to the Company through the Distributor. The Trust shall
not be responsible, and the Company shall take full responsibility, for
determining any jurisdiction in which any qualification or registration of the
Trust shares or the Trust by the Trust may be required in connection with the
sale of the
6
Contracts or the indirect interest of any Contract in any shares of the Trust
and advising the Trust thereof at such time and in such manner as is necessary
to permit the Trust to comply.
2.5. The Trust 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.
2.6 The Trust and the Distributor represent and warrant that all of
their Trustees, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Trust
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
ARTICLE III
PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. At its expense, the Trust shall provide the Company with a
sufficient quantity of its prospectus, SAI and any supplements to any of these
materials once each year (or more frequently if these materials are amended), to
be used in connection with the offerings and transactions contemplated by this
Agreement. In addition, the Trust shall provide the Company with a sufficient
quantity of its proxy materials that are required to be sent to Contract owners
or participants. In lieu of the Trust providing the Company with printed copies
of its prospectus, SAI, supplements and proxy materials, the Company shall have
the right to request that the Trust transmit a copy of such materials in an
electronic format (camera-ready copy), which the Company may use to have such
materials printed together with similar materials of other Separate Account
funding media that the Company or any distributor will distribute to existing or
prospective Contract owners or participants. In this case, the Company shall be
responsible for the expense of printing such documents.
3.2. The Trust's prospectus shall state that the SAI for the Trust is
available from the Trust, and the Trust shall provide the SAI free of charge to
any owner of a Contract or to any prospective Contract owner who requests the
SAI. Distributor and the Trust, as appropriate, agree to provide to the Company
with as many copies of the SAI as reasonably requested by the Company, or such
materials in an electronic format (camera-ready copy).
3.3. The Trust, at its expense, shall provide the Company with copies
of its reports to shareholders, proxy material and other communications to
shareholders in such quantity as the Company shall reasonably require for
distribution to the Contract owners or participants. The Company shall respond
to requests for documents regarding the Trust in a manner that is consistent
with SEC rules, including, but not limited to, Item 1(b) of Form N-1A, which
requires requested documents to be sent within three (3) business days from the
date of request.
3.4. The Company shall vote all the Trust shares as required by law and
the Mixed and Shared Funding Exemptive Order. The Company reserves the right to
vote the Trust shares held in any separate account in each Company's own right,
to the extent permitted by law and the
7
Mixed and Shared Funding Exemptive Order. The Company shall be responsible for
assuring that each of its separate accounts participating in the Trust
calculates voting privileges in a manner consistent with all legal requirements
and the Mixed and Shared Funding Exemptive Order.
3.5. The Trust will comply with all applicable provisions of the 1940
Act requiring voting by shareholders.
ARTICLE IV
SALES MATERIAL AND INFORMATION
4.1. Without limiting the scope or effect of Section 4.2 hereof, the
Company shall furnish, or shall cause to be furnished, to the Distributor each
piece of sales literature or other promotional material (as defined hereafter)
in which the Trust, its investment adviser or the Distributor is named at least
15 days prior to its use. No such material shall be used if the Distributor
objects to such use within ten (10) Business Days after receipt of such
material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Trust shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in annual or semi-annual reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved by the Trust or its designee or by the Distributor, except with the
written permission of the Trust or the Distributor or the designee of either or
as is required by law.
4.3. The Distributor or its designee shall furnish, or shall cause to
be furnished, to the Company or its designee, each piece of sales literature or
other promotional material prepared by the Distributor in which the Company
and/or the Company's Separate Account is named at least 15 days prior to its
use. No such material shall be used if the Company or its designee object to
such use within ten (10) Business Days after receipt of such material.
4.4. Neither the Trust nor the Distributor shall give any information
or make any representations on behalf of the Company or concerning the Company,
each Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, or in published reports for each Separate
Account which are in the public domain or approved by the Company for
distribution to Contract owners or participants, or in sales literature or other
promotional material approved by the Company or its designee, except with the
written permission of the Company or as is required by law.
4.5. For purposes of this Article IV, the phrase "sales literature or
other promotional material" is defined as that material designated as such by
the NASD rules and includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e. any written communication distributed or made generally available to
customers or the public, including
8
brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other communications
distributed or made generally available to some or all registered
representatives.
4.6 The Trust 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, notices and exemptive orders related to applications for exemptive
relief from the requirements of the federal securities laws, and all amendments
to any of the above, that relate to the Trust or its shares, promptly after the
filing of such document with the SEC, the NASD or other regulatory authority.
4.7 The Company will provide to the Trust at least one complete copy
of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, notices and exemptive orders related to applications for exemptive
relief from the requirements of the federal securities laws, and all amendments
to any of the above, that relate to the Trust or its shares, promptly after the
filing of such document with the SEC, the NASD, or other regulatory authority.
ARTICLE V
FEES AND EXPENSES
5.1. If the Trust or any Authorized Fund adopts and implements a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses,
subject to obtaining any required exemptive orders or other regulatory
approvals, the Trust or Distributor may make payments to the Company or to the
underwriter for the Separate Account if and in such amounts agreed to by the
parties in writing.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust to the extent permitted by law. The Trust
shall bear the expenses for the cost of registration and qualification of the
Trust's shares, preparation and filing of the Trust's prospectus and
registration statement, proxy materials and reports, setting the prospectus and
shareholder reports in type, setting in type and printing the proxy materials,
and the preparation of all statements and notices required by any federal or
state law, in each case as may reasonably be necessary for the performance by it
of its obligations under this Agreement. All expenses incident to the
solicitation and tabulation of the Trust's proxy materials will be paid by the
Trust, including postage.
5.3. The Trust shall pay for the cost of typesetting and printing
periodic fund reports to shareholders, prospectuses, prospectus supplements,
statements of additional information and other materials that are required by
law to be sent to Contract owners or participants, as well as the cost of
distributing such materials. The Company shall pay for the cost of printing the
Trust's prospectuses and statements of additional information and for the
distribution thereof for prospective Contract owners or participants. Each party
shall be provided with such supporting data as may reasonably be requested for
determining expenses under this Article V.
9
ARTICLE VI
DIVERSIFICATION
6.1 The Trust will invest its assets to cause each Authorized Fund to
maintain a diversified pool of investments that would, if such Fund were a
segregated asset account, satisfy the diversification requirements of Treasury
Reg. Section 1.817-5(b)(1) or (2). In the event of a breach of this Article VI
by the Trust, it will take all reasonable steps: (a) to notify the Company of
such breach; and (b) to adequately diversify the Trust so as to achieve
compliance within the grace period afforded by Treasury Regulation 1.817-5.
ARTICLE VII
POTENTIAL CONFLICTS
7.1. The Trustees will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the Contract owners or
participants of all separate accounts investing in the Trust. A material
irreconcilable 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 Authorized Fund are being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners or participants; or (f) a decision by an
insurer to disregard the voting instructions of Contract owners or participants.
The Trust shall promptly inform the Company if the Trustees determine that a
material irreconcilable conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Trustees. The Company will assist the Trustees in
carrying out their responsibilities under the Mixed and Shared Funding Exemptive
Order, by providing the Trustees with all information reasonably necessary for
the Trustees to consider any issues raised. This responsibility includes, but is
not limited to, an obligation by the Company to inform the Trustees whenever
Contract owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Trustees, or a majority
of the disinterested Trustees, that a material irreconcilable conflict exists,
the Company shall to the extent reasonably practicable (as determined by a
majority of the disinterested Trustees), take, at the Company's expense (but
only if the Trustees determine that the Company is responsible for causing or
creating said conflict, said conflict is caused by operation of law or said
conflict is the result of some other cause outside the control of the Trust or
any of the Participating Insurance Companies), whatever steps are necessary to
remedy or eliminate the material irreconcilable conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Trust or any Authorized Fund thereof and reinvesting such assets in a
different investment medium, including (but not limited to) another series of
the Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners or participants and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners or participants, life insurance contract owners or participants,
or variable
10
contract owners or participants of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
Contract owners or participants the option of making such a change; and (2)
establishing a new registered management investment company or managed separate
account.
7.4. 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 Trust's election, to withdraw the affected Separate
Account's investment in one or more portfolios of the Trust and terminate this
Agreement with respect to such Separate Account; 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
disinterested Trustees. No charge or penalty shall be imposed as a result of
such withdrawal. Any such withdrawal and termination must take place within six
(6) months after the Trust gives written notice that this provision is being
implemented, and until the end of that six month period, the Distributor and the
Trust shall, to the extent permitted by law and any exemptive relief previously
granted to the Trust, continue to accept and implement orders of the Company for
the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict arises because of a
particular state insurance regulator's decision applicable to the Company to
disregard Contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, then the Company may be
required, at the Trust's direction, to withdraw the affected Separate Account's
investment in one or more Authorized Funds of the Trust; 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
disinterested Trustees. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented, unless a shorter period is required by law, and until the
end of the foregoing six month period (or such shorter period if required by
law), the Distributor and the Trust shall, to the extent permitted by law and
any exemptive relief previously granted to the Trust, continue to accept and
implement orders by that Company for the purchase (and redemption) of shares of
the Trust. No charge or penalty will be imposed as a result of such withdrawal.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict. Neither the
Trust nor the Distributor shall be required to establish a new funding medium
for the Contracts, nor shall the Company be required to do so, if an offer to do
so has been declined by vote of a majority of Contract owners or participants
materially adversely affected by the material irreconcilable conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any material irreconcilable conflict, then the Company will withdraw the
Separate Account's investment in one or more Authorized Funds of the Trust and
terminate this Agreement within six (6) months (or such shorter period as may be
required by law or any exemptive relief previously granted to the Trust) after
the Trustees inform the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required
11
by any such material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty will be imposed as a result of such
withdrawal.
7.7. The responsibility to take remedial action in the event of the
Trustees' determination of a material irreconcilable conflict and the obligation
of the Company set forth in this Article VII shall be carried out with a view
only to the interests of Contract owners or participants.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4
and 7.5 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
7.9. The Company has reviewed the Mixed and Shared Funding Exemption
Order and hereby assumes all obligations referred to therein which are required,
including, without limitation, the obligation to provide reports, material or
data as the Trustees may request, as conditions to such order, to be assumed or
undertaken by the Company.
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnification by the Company
8.1. (a). The Company shall indemnify and hold harmless the Trust,
the Distributor in its capacity as distributor and investment adviser
("Adviser") to the Trust, and each of the Trustees, directors of the Distributor
or the Adviser, officers, employees or agents of the Trust, the Distributor or
the Adviser, and each person, if any, who controls the Trust, Adviser or the
Distributor within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company which consent may not be unreasonably
withheld) or litigation expenses (including reasonable 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 Trust's shares or the Contracts or
the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a
registration statement, prospectus or SAI for the Contracts or
contained in the Contracts or sales literature for the Contracts
(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
12
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 Trust
for use in the registration statement, prospectus or SAI for the
Contracts or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection with
the sale of the Contracts or the Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations
contained in the Trust's registration statement or prospectus, or
in sales literature for the Trust shares not supplied by the
Company, or persons under its control) or wrongful conduct of the
Company or its agents or employees or persons under its control,
with respect to the sale or distribution of the Contracts or the
Trust 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 Trust or any
amendment thereof 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 a statement or omission was made in reliance upon
information furnished to the Trust or the Distributor by or on
behalf of the Company; or
(iv) arise out of or result from any breach of any material
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Company, as limited by and in accordance
with the provisions of Sections 8.1(b) and 8.1(c) hereof.
8.1. (b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party to the extent such may arise
from 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 or duties under this
Agreement or to the Trust, whichever is applicable.
8.1. (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 any designated agent), on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim 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 the
Company's expense, in the defense of such
13
action. The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action. After notice
from the Company to such Indemnified 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 Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof other than reasonable costs of investigation.
8.1. (d) The Distributor shall promptly notify the Company of the
commencement of any litigation or proceedings against the Trust or the
Distributor in connection with the issuance or sale of the Trust shares or the
Contracts or the operation of the Trust.
8.1. (e) The provisions of this Section 8.1 shall survive any
termination of this Agreement.
8.2. Indemnification by the Distributor
8.2. (a) The Distributor shall indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act and any director, officer, employee or agent of the
foregoing (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor which consent may
not be unreasonably withheld) or litigation expenses (including reasonable 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 Trust's shares or the Contracts or
the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a
registration statement, prospectus, or SAI for the Trust or the
sales literature for the Trust prepared by the Trust or
Distributor (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
Trust by or on behalf of the Company for use in sales literature
(or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or the Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations
contained in the registration statement, prospectus, SAI or sales
literature for the Contracts not supplied by the Distributor or
persons under its control) of the Distributor or persons under its
14
control, with respect to the sale or distribution of the Contracts
or the Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI or sales literature covering the
Contracts, or any amendment thereof 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 Distributor; or
(iv) arise out of or result from any breach of any material
representation and/or warranty made by the Distributor or the
Trust in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor or the Trust;
as limited by and in accordance with the provisions of Sections
8.2(b) and 8.2(c) hereof.
8.2. (b) The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party as
such may arise from 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 Separate Account, whichever is
applicable.
8.2. (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
such service on any designated agent) on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim, 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 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 Distributor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Distributor to such Indemnified 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 Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
Indemnified Party independently in connection with the defense thereof other
than reasonable costs of investigation.
8.2. (d) The Company shall promptly notify the Distributor, the
Adviser and the Trust 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 Contracts or the operation of each Separate Account.
15
8.2. (e) The provisions of this Section 8.2 shall survive any
termination of this Agreement.
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 Massachusetts.
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 (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X
TERMINATION
10.1. This Agreement shall terminate:
(a) at the option of any party, with respect to some or all of
the Authorized Funds, upon sixty (60) days' advance written notice to the other
parties; or
(b) at the option of the Trust or the Distributor in the event
that formal administrative proceedings are instituted against the Company by the
NASD, the SEC, any State Insurance Commissioner or any other regulatory body
regarding the Company's duties under this Agreement or related to the sales of
the Contracts, with respect to the operation of any Separate Account, or the
purchase of the Trust shares, provided, however, that the Trust or the
Distributor determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect upon the
ability of the Company to perform its obligations under this Agreement; or
(c) at the option of the Company in the event that formal
administrative proceedings are instituted against the Trust or Distributor by
the NASD, the SEC, or any state securities or insurance department or any other
regulatory body in respect of the sale of shares of the Trust to the Company,
provided, however, that the Company determines in its sole judgment exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Trust or Distributor to perform its
obligations under this Agreement; or
(d) with respect to any Separate Account, upon requisite vote
of the Contract owners or participants having an interest in such Separate
Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Authorized Fund shares of the Trust in accordance
with the terms of the Contracts for which those Authorized Fund shares had been
selected to serve as the underlying investment media. The Company will give 30
days' prior written notice to the Trust of the date of any proposed vote to
replace the Trust's shares;
16
(e) with respect to any Authorized Fund, upon 30 days' advance
written notice from the Distributor to the Company, upon a decision by the
Distributor to cease offering shares of the Trust for sale; or
(f) at the option of any party to this Agreement, upon written
notice to the other parties, upon another party's material breach of any
provision of this Agreement which material breach is not cured within thirty
(30) days of said notice.
10.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 10.1 (a) may be exercised for any
reason or for no reason.
10.3. No termination of this Agreement shall be effective unless and
until the party terminating this Agreement gives prior written notice to all
other parties to this Agreement of its intent to terminate, which notice shall
set forth the basis for such termination. Such prior written notice shall be
given in advance of the effective date of termination as required by this
Article X.
10.4. Notwithstanding any termination of this Agreement, subject to
Sections 1.2 and 10.5 of this Agreement, the Trust and the Distributor shall, at
the option of the Company, continue to make available additional shares of the
Trust pursuant to the terms and conditions of this Agreement, for all Contracts
in effect as of the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, subject to Sections 1.2 and
10.5 of this Agreement, the owners or participants of the Existing Contracts
shall be permitted to reallocate investments in the Trust, redeem investments in
the Trust and/or invest in the Trust upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this Section 10.4
shall not apply to any termination under Article VII and the effect of such
Article VII termination shall be governed by Article VII of this Agreement.
10.5. If any party terminates this Agreement with respect to any
Authorized Fund pursuant to the provisions under Article X, the Agreement shall
nevertheless continue in effect as to any shares of the Trust that are
outstanding as of the date of such termination (the "Initial Termination Date").
This continuation shall extend to the earlier of (a) the date as of which an
Separate Account no longer owns shares of the affected Authorized Fund or (b)
the date (the "Final Termination Date") as of 180 days following the Initial
Termination Date, or, at the Distributor's option, such later date as is
necessary for the Company to obtain a substitution order from the SEC, the
application for which the Company will diligently pursue.
10.6. The Company shall not redeem the Trust shares attributable to the
Contracts (as opposed to the Trust shares attributable to the Company's assets
held in either Separate Account) except (i) as necessary to implement Contract
owner or participant initiated transactions, or (ii) 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 Trust and the Distributor an
opinion of counsel for the Company, reasonably satisfactory to the Trust, to the
effect that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms of the
Contracts, subject to Sections 1.2 and 10.5 of this Agreement, the Company shall
not prevent Contract owners or participants from allocating payments to an
17
Authorized Fund that is otherwise available under the Contracts without first
giving the Trust or the Distributor 90 days' written notice of its intention to
do so.
ARTICLE XI
NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail 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 Trust:
ING Investors Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Chief Counsel
If to the Distributor:
Directed Services Inc.
c/o ING Funds Services, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Chief Counsel
If to the Company:
ING Insurance Company of America
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, XX 00000
Attn: Counsel
ARTICLE XII
MISCELLANEOUS
12.1. A copy of the Agreement and Declaration of Trust is on file with
the Secretary of State of the State of Massachusetts, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as the
Trustees and not individually and that the obligations of or arising out of this
instrument, including without limitation Article VI, are not binding upon any of
the Trustees or shareholders individually but binding only upon the assets and
property of the Trust.
12.2. 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.
18
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, 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.
12.6. 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.
12.7. Notwithstanding any other provision of this Agreement, the
obligations of the Trust and the Distributor are several and, without limiting
in any way the generality of the foregoing, neither such party shall have any
liability for any action or failure to act by the other party, or any person
acting on such other party's behalf.
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 and its seal to be hereunder affixed hereto as of the date first
written above.
ING INVESTORS TRUST
By its authorized officer,
------------------------------------------
Name: Xxxxxx X. Naka
Title: Senior Vice President
ING INSURANCE COMPANY OF AMERICA
By its authorized officer,
------------------------------------------
Name:
Title:
DIRECTED SERVICES, INC.
By its authorized officer,
------------------------------------------
Name:
Title:
19
SCHEDULE A
SEPARATE ACCOUNTS
Separate Account One
SCHEDULE B
ING INVESTORS TRUST
AUTHORIZED PORTFOLIOS:
ING Xxxxxx Xxxx Foreign Portfolio - Class S
ING Stock Index Portfolio - Class I
NSCC EXHIBIT
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 1.11 of the Participation Agreement, the
parties hereby agree to provide pricing information, execute orders and wire
payments for purchase and redemptions of Fund Shares through National Security
Clearing Corporation ("NSCC") and its subsidiary systems as follows:
(a) Distributor or the Funds will furnish to the Company 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 (4) 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 the Company 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 the Company 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, the Company or its
affiliate will calculate the net purchase or redemption order for
each Fund. Orders for net purchases or redemptions derived from
Instructions received by the Company 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 the
Company's or its affiliate's compliance with the foregoing, the
Company or its affiliate will be considered the agent of the
Distributor and the Funds, and the Business Day on which
Instructions are received by the Company 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 the Company 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.
2
(c) The Company 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 the Company
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 the Company 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 the Company'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 the Company 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 the Company 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. The Company 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.
3
