Contract
Exhibit 24(b)(8.45)
SERVICE AGREEMENT
This Agreement is entered into as of August 1, 2002 among, ING Life Insurance and Annuity
Company, ("ING Life"), a Connecticut corporation, ING Financial Advisers, LLC, a Delaware
limited liability company ("ING Financial") (collectively the "Service Provider"), Dodge & Xxx,
a California corporation ("Dodge & Xxx"), and Boston Financial Data Services Inc" a
Massachusetts corporation ("Transfer Agent").
Service Provider provides certain administrative services which may include, but are not
limited to, the following:
- recordkeeping, reporting and processing services
- purchase, redemption and exchange of Fund shares
- crediting of Fund distributions
- maintenance of Participants' Fund information such as share balance(s), dividend information and transaction history
- sending of confirmations, statements, prospectuses and other materials as may be required by applicable law or regulation
- tax reporting to participants
- employee communication/education
(the "Administrative Services") to one or more employee benefit plan plans established pursuant
to Section 401 or 457 of the Internal Revenue Code of 1986, as amended ("Code"), custodial
accounts under Section 403(b)(7) or 408 of the Code, and certain nonqualified deferred
compensation arrangements (collectively, the "Plan(s)"). Administrative Services for the Plan(s)
include processing and transfer arrangements for the investment and reinvestment of Plan assets
in investments specified by an investment adviser, sponsor or administrative committee of the
Plan(s) (a "Plan Representative") generally upon the direction of Plan beneficiaries (the
"Participants"). The Administrative Services are provided by Service Provider under service
agreements with the Plan(s).
Dodge & Xxx serves as investment adviser to the open-end management investment
companies identified on Schedule A attached hereto (collectively, the "Funds" and individually,
a "Fund"). Schedule A may from time to time be updated to include new Funds or reflect Fund
name changes upon written notice from Dodge & Xxx to Service Provider and Transfer Agent
without the need for a formal amendment to this Agreement so long as they do not object to such
notification within a reasonable period of time after its receipt. Each Fund is registered with the
Securities and Exchange Commission under the Investment Company Act of 1940, as amended
(the "Company Act"). Dodge & Xxx does not serve as an investment adviser to the Plan(s).
Transfer Agent serves as transfer agent to each of the Funds.
Service Provider and Dodge & Xxx desire to facilitate the purchase and redemption of
shares of the Funds (the "Shares") on behalf of the Plan(s) and Participants through a single
omnibus account for each of the Funds held in the name of a Nominee on behalf of the Plans
(individually an "Account," and collectively the "Accounts") subject to the terms and conditions
of this Agreement.
Dodge&Cox Selling Agr.doc
Accordingly, the parties hereto agree as follows:
1. Procedures. The operating procedures (the "Procedures") governing the
responsibilities of the parties under this Agreement are set forth in Schedule B which is attached
hereto and specifically made a part of this Agreement. The Procedures shall be in accordance
with the terms of each Fund's prospectus, the requirements of the Company Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and all other applicable
laws and regulations.
2. Maintenance of Records.
(a) Each party shall maintain and preserve all records it is required by law to maintain and preserve in connection with the matters contemplated by this Agreement.
(b) Subject to any applicable confidentiality obligations, each party hereby
agrees to make available copies of all records such party is required to maintain hereunder that
are reasonably requested by any other party to ensure compliance with applicable law. Such
copies shall be furnished at the expense of the requesting party.
3. Compliance with Laws. At all times during the term of this Agreement, each
party shall comply with all applicable laws, rules and regulations.
4. Operation of the Funds. In no way shall the provisions of this Agreement limit
the authority of the Funds or Dodge & Xxx to take such lawful action as they may deem
appropriate or advisable in connection with all matters relating to the operation of the Funds and
the sale of their Shares.
5. Representations with respect to the Funds. Service Provider and its agents shall
not make representations concerning any Fund or its Shares except in strict accordance with the
information contained in: (a) the Fund's then current prospectus, (b) current sales literature
respecting the Fund furnished by Dodge & Xxx to Service Provider, or (c) current sales literature
created respecting the Fund by Service Provider and, except for any material that simply lists the
Funds' names, is submitted to and approved by Dodge & Xxx in writing in advance of its first
distribution or use. Dodge & Xxx agrees to approve or disapprove such sales literature within
five (5) days after submission of such materials by Service Provider. Dodge & Xxx also agrees
to provide to Service Provider via Excel spreadsheet diskette format or in electronic transmission
to Service Provider at least quarterly portfolio information necessary to update Fund profiles
within twelve (12) business days following the end of each quarter.
6. Expenses.
(a) Except as otherwise provided in this Agreement, each party shall bear all expenses incidental to the performance of its obligations under this Agreement.
(b) Dodge & Xxx shall distribute, or cause to be distributed, to Service Provider
Fund prospectuses, any Fund proxy solicitation materials, periodic reports to Fund shareholders
and other materials that the Funds may be required by law to distribute to the Planes) as
shareholders of the Funds. If Service Provider does not meet the Administrative Fee
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Threshold defined in Section 10 below, Dodge & Xxx agrees to reimburse Service Provider for
the cost of distributing such items. Dodge & Xxx agrees to reimburse Service Provider for any
costs Service Provider incurs in connection with proxies for the Funds, including proxy
preparation, programming for tabulation and necessary materials (including postage).
7. Relationship of Parties. Except to the limited extent provided in Paragraph 2(c) of
the Procedures, it is understood and agreed that all services performed hereunder by Service
Provider shall be as an independent contractor and not as an employee or agent of Dodge & Xxx
or any Fund, and none of the parties shall hold itself out as an agent of any other party with the
authority to bind such other party.
8. Use of Names. Except as otherwise expressly provided herein or in the case of
enrollment materials that simply list the Funds' names, neither party shall use, nor shall it allow
its employees or agents to use, the name, logo, trademarks or servicemarks of the other party for
advertising, trade, or other commercial or noncommercial purposes without their express prior
written consent.
9. Insurance and Bonding. Dodge & Xxx and Service Provider agree to maintain
errors and omissions (or equivalent) insurance coverage. Upon the request of Dodge & Xxx,
Service Provider shall furnish to Dodge & Xxx a certificate of insurance evidencing such
coverage, Each of the parties shall maintain fidelity bond coverage for its employees and
authorized agents in such amounts as may be required by applicable law.
10. Fees. The provision of this Section 10 shall become effective on the first day of
the calendar month following the date on which the aggregate investment in Shares by all Plans
contemplated herein equals $5 million ("Administrative Fee Threshold").
(a) In consideration of Service Provider's performance of its obligations
hereunder, Dodge & Xxx agrees to pay Service Provider, out of Dodge & Xxx'x own resources,
the fees described in Schedule C attached hereto (the "Administrative Fees").
(b) The parties agree that the Administrative Fees are for Administrative
Services only and do not constitute payment in any manner for investment advisory or
distribution services.
(c) The Administrative Fees will be calculated by Dodge & Xxx at the end of
each calendar quarter based on assets invested in the Accounts by the Plans, and Dodge & Xxx
will make payment thereof to the Service Provider within 30 days after the end of each calendar
quarter. Each payment will be accompanied by a statement showing the calculation of the fee
payable to Service Provider for the quarter and such other supporting data as may reasonably be
requested by Service Provider. Upon request, but not more than quarterly, Service Provider will
provide to Dodge & Xxx information showing the number of shares or market value of each Plan
invested in the Funds.
11. Termination. This Agreement may be terminated by any party at any time upon
at least sixty (60) days' prior written notice to the other parties. Termination shall not affect the
Funds' respective obligations to continue to maintain the Account as an investment option for
Plans electing to invest in the Funds prior to the termination of this Agreement. After
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termination of this Agreement, no Administrative Fee shall be due with respect to any Shares that
are purchased or held by the Plan(s) after the date of termination. Notwithstanding the foregoing,
any party may terminate this Agreement immediately upon written notice to such party of the
institution of formal proceedings against any other party with respect to the arrangements
documented herein by the Securities and Exchange Commission or any other regulatory body.
12. Indemnification.
(a) Service Provider agrees to indemnify and hold harmless Transfer Agent,
Dodge & Xxx, the Funds, the Funds' administrators, and each of their respective affiliates,
directors, trustees, officers, employees, agents and each person, if any, who controls them within
the meaning of the Securities Act of 1933, as amended (the "Securities Act"), against any losses,
claims, damages, settlements, liabilities or expenses (including, without limitation, reasonable
attorneys' fees and expenses whether or not involving a third party) (collectively, "Claims") to
the extent any such Claim arises out of or is based upon (i) the provision of Administrative
Services by Service Provider, (ii) Service Provider's negligence, bad faith, or willful misconduct
in performing its obligations hereunder, (iii) any breach by Service Provider of any material
provision of this Agreement, or (iv) any breach by Service Provider of a representation, warranty
or covenant made in this Agreement; and Service Provider shall reimburse the persons
indemnified hereunder for any legal or other expenses reasonably incurred, as incurred, by them
in connection with investigating or defending such Claim. This indemnity agreement shall be in
addition to any liability which Service Provider may otherwise incur.
(b) Dodge & Xxx agrees to indemnify and hold harmless Transfer Agent,
Service Provider, and the Funds, and each of their respective affiliates, directors, trustees,
officers, employees, agents and each person, if any, who controls them within the meaning of the
Securities Act against any Claims to the extent any such Claim arises out of or is based upon (i)
any breach by Dodge & Xxx of any material provision of this Agreement, (ii) Dodge & Xxx'x
negligence, bad faith, or willful misconduct in carrying out its duties and responsibilities under
this Agreement, or (iii) any breach by Dodge & Xxx of a representation, warranty or covenant
made in this Agreement; and Dodge & Xxx shall reimburse the persons indemnified hereunder
for any legal or other expenses reasonably incurred, as incurred, by them in connection with
investigating or defending such Claim.
(c) Transfer Agent agrees to indemnify and hold harmless Service Provider,
Dodge & Xxx, and the Funds, and each of their respective affiliates, directors, officers, trustees,
employees, agents and each person, if any, who controls them within the meaning of the
Securities Act against any Claims to the extent any such Claim arises out of or is based upon (i)
any breach by Transfer Agent of any material provision of this Agreement, (ii) Transfer Agent's
negligence, bad faith or willful misconduct in carrying out its duties and responsibilities under
this Agreement, or (iii) any breach by Transfer Agent of a representation, warranty or covenant
made in this Agreement; and Transfer Agent shall reimburse the persons indemnified hereunder
for any legal or other expenses reasonably incurred, as incurred, by them in connection with
investigating or defending such Claim.
(d) Upon the assertion of a Claim for which a party may be required to
indemnify another party, the party seeking indemnification ("Indemnitee") shall promptly notify
the indemnifying party ("Indemnitor") in writing of such assertion and of any relevant facts or
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background known by Indemnitee with respect to such Claim. Indemnitor shall elect whether to
participate with Indemnitee in the defense of such Claim or to defend against such Claim in its
own name, in the name of Indemnitees or in the name of the party against whom the Claim is
made. If Indemnitor elects to defend and control the course of any defense, Indemnitee shall
cooperate with Indemnitor in connection with such defense. If Indemnitor elects not to control
the defense, Indemnitee shall have the right to select counsel of its choice and participate in such
defense. In any event, Indemnitor shall not be responsible for any Claim settled or compromised,
or for any confessions of judgment, without its prior written consent.
13. Notice. Each notice required by this Agreement shall be given in writing and
delivered personally or mailed by certified mail or courier service to the other party at the
following address or such other address as each party may give notice to the other:
If to Service Provider;
ING Life Insurance and Annuity Company/ING Financial Services, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Counsel
If to Dodge & Xxx or any Fund:
Dodge & Xxx
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxx@xxxxxxxxxxx.xxx
Attn: Xxxxxx X. Xxxxxxx
If to Transfer Agent:
Boston Financial Data Services Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx
A notice given pursuant to this Section 13 shall be deemed given immediately when delivered
personally, three (3) business days after the date of certified mailing, and one (1) business day
after delivery by overnight courier service.
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14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California applicable to agreements fully
executed and to be performed therein.
15. Additional Representations, Warranties and Covenants.
(a) Each party represents, warrants and covenants that it has full power and
authority under applicable law, and has taken all action necessary, to enter into and perform this
Agreement, and that it is free to enter into this Agreement and that by doing so it will not breach
or otherwise impair any other agreement or understanding with any other person, corporation or
other entity.
(b) Service Provider further represents, warrants, and covenants that:
(i) ING Financial is duly registered as a broker dealer with the SEC
and a member in good standing of the NASD;
(ii) the arrangements provided for in this Agreement will be
adequately disclosed to the Planes) through their representatives;
(iii) the receipt of the fees described in Section 10 hereof by Service
Provider will not constitute a non-exempt "prohibited transaction" as such term is defined in
Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code, as amended; and
(iv) the operation of the Agreement complies in all material respects
with applicable laws and regulations.
(c) Transfer Agent further represents, warrants and covenants that it is duly
registered as a transfer agent pursuant to Section 17A of the Exchange Act.
16. Complete Agreement. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations, promises, statements,
arrangements, agreements, warranties and understandings between the parties with respect to the
subject matter hereof, whether oral or written, express or implied.
17. Modification. This Agreement may be modified or amended, and the terms of
this Agreement may be waived, only by a writing signed by each of the parties.
18. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same Agreement.
19. Assignment. This Agreement shall not be assigned by a party, without the prior
written consent of the other parties, except that a party may assign this Agreement to an affiliate
having the same ultimate ownership and regulatory licenses or qualifications as the assigning
party without such prior consent, but only upon at least 10 days' prior written notice to the other
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parties, and the assigning party shall, subsequent to any such assignment, promptly notify the
other parties in writing.
20. Survival. The provisions of Sections 2, 8 and 12 shall survive termination of this
Agreement.
21. Confidentiality. The parties agree that all books, records, information and data
pertaining to the business of another party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential and shall not be
voluntarily disclosed to any other person, except as may be required by law.
22. Non-Exclusivity. Each of the parties acknowledges and agrees that this
Agreement and the arrangement described herein are intended to be non-exclusive and that each
of the parties is free to enter into similar agreements and arrangements with other entities.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly
authorized officers as of the date first written above.
| ING | LIFE INSURANCE AND ANNUITY |
| COMPANY | |
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx |
| Name: | Xxxxxx X. Xxxxxxxxxxx |
| Title: | Vice President |
| ING FINANCIAL ADVISERS, LLC | |
| By: | /s/ Xxxxxxxxx Xxxxxx |
| Name: | Xxxxxxxxx Xxxxxx |
| Title: | Vice President |
| DODGE & XXX | |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
| Name: | Xxxxxxx X. Xxxxxxxxx |
| Title: | Vice President |
| BOSTON FINANCIAL DATA SERVICES INC. | |
| By: | /s/ Xxxxx Xxxxxxxxx |
| Name: | Xxxxx Xxxxxxxxx |
| Title: | Vice President |
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| SCHEDULE A | ||||
|
| ||||
| FUNDS: | TICKER SYMBOL | CUSIP | ||
| (1) | Dodge & Xxx Stock Fund | DODGX | 256219106 | |
| (2) | Dodge & Xxx International Stock Fund | DODPX | 256206103 | |
| (3) | Dodge & Xxx Balanced Fund | DODBX | 256201104 | |
| (4) | Dodge & Xxx Income Fund | DODlX | 256210105 | |
SCHEDULE B
1. Pricing Information. Dodge & Xxx, or its designee, will furnish Service Provider,
(via facsimile or electronic transmission), on each business day that the New York Stock
Exchange is open for business ("Business Day"), with (a) per share net asset value information as
of the close of trading (currently 4:00 p.m. Eastern Time) on the New York Stock Exchange, or
as of such earlier times at which the Funds' net asset values are calculated as specified in the
Funds' then current prospectuses ("Close of Trading"), and (b) per share dividend and capital
gains information respecting the Funds as it becomes available. Dodge & Xxx shall use its best
efforts to provide such information to Service Provider by 6:30 p.m. Eastern Time, but will
provide such information by 7:00 p.m. Eastern Time on the same Business Day, absent
extraordinary circumstances. In the event that prices will be transmitted after 7 p.m. Eastern
Time, Dodge & Xxx will use it best efforts to notify Service Provider of the delay. In the event
that prices are not received by Service Provider, Service Provider will contact the Funds' toll-free
Shareholder Services number, access the Funds' Web site (xxx.xxxxxxxxxxx.xxx) or call
Dodge & Xxx directly to obtain prices.
To the extent required by applicable federal law, Dodge & Xxx shall be liable to Service Provider
for reasonable and customary systems and out-of-pocket costs incurred by Service Provider in
making a Plan's or a participant's account whole, if such costs or expenses are a result of the Fund's
failure to provide timely or correct net asset values, dividend and capital gains information, taking
into consideration any offsets or credits that are due the Funds for overpayments to participants.
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2. Orders and Settlement.
(a) Upon the receipt of instructions from Participants or Plan Representatives,
Service Provider will calculate order allocations among designated investment media and
transmit (via facsimile or electronic transmission) to Transfer Agent orders to purchase or
redeem Shares for specified Accounts on the basis of those instructions, as set forth below.
Service Provider agrees that orders for net purchases or net redemptions of Shares derived from
instructions received in proper form by Service Provider from Participants or Plan
Representatives prior to the Close of Trading on any given Business Day ("trade date") will be
processed that same evening and transmitted to Transfer Agent by 8:00 a.m. Eastern Time on the
next Business Day ("trade date plus one"). If Service Provider is transmitting orders via facsimile
and Transfer Agent's telefax lines are busy, Service Provider will place its order by contacting
Transfer Agent at the designated telephone number, currently (000) 000-0000 or (000) 000-0000,
or such other telephone numbers as shall be provided to Service Provider in writing. If Service
Provider is transmitting orders via electronic transmission and is not able to transmit
electronically on a given day, Service Provider will place its order by contacting the Transfer
Agent at the designated telephone number, currently (000) 000-0000 or (000) 000-0000, or such
other telephone numbers as shall be provided to Service Provider in writing. Service Provider
agrees that payment for net purchases of Shares attributable to all orders executed for the
Accounts on a given Business Day (trade date) will be initiated by wire by Service Provider or
its designee on the same Business Day such purchase orders are transmitted to Transfer Agent
(trade date plus one) no later than 4:00 p.m. Eastern Time to a custodial account designated by
Transfer Agent.
(b) Transfer Agent agrees that payment for net redemptions of Shares
attributable to all orders executed for the Accounts on a given Business Day (trade date) will be
initiated by wire by Transfer Agent on the same business day such redemption orders are
transmitted to Transfer Agent (trade date plus one) no later than 4:00 p.m. Eastern Time to a
custodial account designated by Service Provider; provided, however, that a Fund may, if
necessary, delay redemption of its Shares to the extent permitted by the Company Act.
(c) Subject to Service Provider's compliance with the foregoing, Service
Provider shall be an agent for each Fund for the sole and limited purpose of receiving Share
purchase and redemption instructions, and the Business Day on which such Share instructions
are received in proper form by Service Provider from Participants or Plan Representatives by the
Close of Trading shall be the date as of which Shares will be purchased and redeemed as a result
of such instructions at the net asset value per Share next determined after such receipt by Service
Provider. Dodge & Xxx represents that each Fund has consented to such limited appointment.
(d) Instructions received in proper form by Service Provider from Participants
or Plan Representatives after the Close of Trading on any given Business Day shall be treated as
if received on the next following Business Day, and shall be effected at the net asset value per
Share next determined after such receipt. Dodge & Xxx agrees that payment for net distributions,
if a Fund is a fixed-income fund, will include (when applicable) income accrued during the
current accrual period of such Fund. Dividends and capital gains distributions will be
automatically reinvested at net asset value in accordance with the Funds' then current
prospectuses.
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Rev. 11/2001
(e) If full payment for any order is not received by Transfer Agent in a timely
manner as required in Section 2(a) above, then Dodge & Xxx or the Funds reserve the right to
cancel such order or, at its option, to cause the Shares covered by the order to be redeemed by
the applicable Fund at the then prevailing net asset value per Share. Service Provider agrees to be
responsible for any claim resulting from such failure to make timely payment as aforesaid, and
the Account affected shall not be entitled to any gains generated thereby.
3. Account Information. Transfer Agent agrees to provide to Service Provider daily
confirmations of Account activity and statements detailing activity in each Account consistent
with each Fund's prospectus requirements. Service Provider shall notify Transfer Agent of any
material differences within twenty (20) Business Days of receipt of the confirmation or statement
of Account activity.
4. NSCC. The parties may agree to provide pricing information, execute orders and
wire payments for purchases and redemptions through National Securities Clearing Corporation's
Fund/SERV system, in which case such activities will be governed by the provisions set for in a
separate Fund/SERV agreement to be executed by the parties.
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Rev. 11/2001
SCHEDULE C
ADMINISTRATIVE FEES
____% per annum on each of the Dodge & Xxx Stock Fund, Dodge & Xxx International
Stock Fund and the Dodge & Xxx Balanced Fund, and ___% per annum on the Dodge &
Xxx Income Fund, calculated by taking one quarter of the per annum rate multiplied by
the average of the three month end net asset values held by Plans during each quarter.
The Administrative Fees payable each quarter with respect to a Fund shall be an amount
equal to the average of the three month end net asset values invested in the Fund,
multiplied by the applicable per annum rate described above, divided by __.
Example:
| Quarter ending June 30 (Dodge & Xxx Balanced Fund) | |
| Account value as of April 30: | $_________ |
| Account value as of May 31: | $_________ |
| Account value as of June 30: | $_________ |
| $_________ | |
| $__________/__ = $________ | |
| $_______ x [____] /__ = $________. (Quarterly payment) | |
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