Ex. 99-B.8.110 SELLING AND SERVICES AGREEMENT AND FUND PARTICIPATION AGREEMENT
Ex. 99-B.8.110
SELLING AND SERVICES AGREEMENT
AND
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of this 7th day of February, 2006
by and among ING Life Insurance and Annuity Company ("ING Life"), ING Financial
Advisers, LLC ("ING Financial") (collectively, "ING"), Quasar Distributors, LLC
("Quasar") and Xxxxxx Xxxx Capital Management Corporation ("Adviser"), acting as
agent for the registered open-end management investment companies advised by the
Adviser (each a "Fund" or collectively the "Funds").
WHEREAS, LKCM Funds is a registered open-end investment company
consisting of separate series identified on the attached schedule A; and
WHEREAS, Quasar serves as principal underwriter in connection with the offering
and sale of the Shares of each Fund pursuant to a Distribution Agreement, and
WHEREAS, Adviser is registered investment adviser licensed under the
Investment Advisers Act of 1940 (the “Advisers Act”); and
WHEREAS, ING Life is an insurance company that issues annuity contracts to,
and/or provides various recordkeeping and other administrative services to, certain plans
under Sections 401, 403(b), 457 or 408 of the Internal Revenue Code of 1986, as
amended ("Code"), certain nonqualified deferred compensation arrangements, and
custodial accounts under Section 403(b)(7) or 408 of the Code (collectively, "Plans"); and
WHEREAS, such Plans may invest in the Funds directly, or alternatively, certain of
such Plans may invest in the Funds indirectly through annuity contracts issued by ING
Life (the "Contracts"); and
WHEREAS, ING Life has established Variable Annuity Accounts B, C, D and F
and may establish such other accounts as may be set forth in Schedule B attached hereto
(the "Separate Accounts") to serve as an investment vehicle for the Contracts; and
WHEREAS, ING Life will provide various administrative and shareholder services
in connection with the investment by the Plans in the Funds or in the Contracts; and
WHEREAS, ING Financial will distribute to Plans shares of the Funds or units of
the Separate Accounts that may in turn invest in the Funds;
NOW, THEREFORE, it is agreed as follows: | |
1. | Investment of Plan Assets. |
(a) With respect to Plans that invest in the Funds directly, ING Financial | |
represents that it is authorized under the Plans to implement the investment of Plan assets
in the name of an appropriately designated nominee of each Plan ("Nominee") in shares
of investment companies or other investment vehicles specified by a sponsor, an
investment adviser, an administrative committee, or other fiduciary as designated by a
Plan ("Plan Representative") upon the direction of a Plan participant or beneficiary
("Participant"). The parties acknowledge and agree that selections of particular
investment companies or other investment vehicles are made by Plan representatives or
Participants, who may change their respective selections from time to time in accordance
with the terms of the Plan.
(b) With respect to Plans that invest in the Funds indirectly through the Contracts,
ING Life represents that each of the Separate Accounts is a separate account under
Connecticut Insurance law and that it has registered or will register each of the Separate
Accounts (except for such Accounts for which no such registration is required) as a unit
investment trust under the Investment Company Act of 1940 (the "1940 Act"), to serve as
an investment vehicle for the Contracts. Each Contract provides for the allocation of net
amounts received by ING Life to a Separate Account for investment in the shares of one
or more specified open-end management investment companies available through that
Separate Account as underlying investment media. Selection of a particular investment
management company and changes therein from time to time are made by the Contract
Owner or Participant, as applicable under a particular Contract.
2. Omnibus Account.
The parties agree that, with respect to each Fund, a single omnibus account held in
the name of the Nominee shall be maintained for those Plan assets directed for investment
directly in the Fund, and a single omnibus account held in the name of ING Life shall be
maintained for those Plan assets directed for investment in the Fund through the
Contracts (collectively, the "Accounts.") ING Life as issuer of the Contracts or as service
agent for the Plans, shall facilitate purchase and sale transactions with respect to the
Accounts in accordance with the Agreement.
3. | Pricing Information, Orders, Settlement. |
(a) Quasar (on its own behalf or through its transfer agent) will make shares | |
available to be purchased by the Nominee or by ING Life, as applicable, on behalf of the
Accounts, at the net asset value applicable to each order; provided, however, that the
Plans or the Separate Accounts meet the criteria for purchasing shares of the Funds at net
asset value as described in the Funds' prospectuses. Fund shares shall be purchased and
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redeemed on a net basis for such Plans or such Separate Accounts in such quantity and at
such time determined by ING or the Nominee to correspond with investment instructions
received by ING from Contract owners, Plan Representatives or Participants.
(b) Quasar (on its own behalf or through its transfer agent) agrees to furnish or
cause to be furnished to ING Financial for each Fund: (i) confirmed net asset value
information as of the close of trading (currently 4:00 p.m., East Coast time) on the New
York Stock Exchange ("Close of Trading") on each business day that the New York
Stock Exchange is open for business ("Business Day") or at such other time as the net
asset value of a Fund is calculated as disclosed in the relevant then current prospectus(es)
in a format that includes the Fund's name and the change from the last calculated net asset
value, (ii) dividend and capital gains information as it arises, and (iii) in the case of a
fixed income fund, the daily accrual or the distribution rate factor. Quasar (on its own
behalf or through its transfer agent) shall provide or cause to be provided to ING
Financial such information by 6:30 p.m., East Coast time.
(c) ING Financial, as agent for the Funds for the sole purposes expressed herein
shall receive from Contract owners, Plan Representatives or Participants for acceptance
as of the Close of Trading on each Business Day: (i) orders for the purchase of shares of
the Funds, exchange orders, and redemption requests and redemption directions with
respect to shares of the Funds held by the Nominee or by ING Life on behalf of its
Separate Accounts ("Instructions"), (ii) transmit to Quasar (on its own behalf or through
its transfer agent) such Instructions no later than 9:00 a.m., East Coast time on the next
following Business Day, and (iii) upon acceptance of any such Instructions, communicate
such acceptance to the Contract owners, Plan Representatives or Plan Participants, as
appropriate ("Confirmation"). The Business Day on which such Instructions are received
in proper form by ING Financial and time stamped by the Close of Trading will be the
date as of which Fund shares shall be deemed purchased, exchanged, or redeemed as a
result of such Instructions. Instructions received in proper form by ING Financial and
time stamped after the Close of Trading on any given Business Day shall be treated as if
received on the next following Business Day. ING Financial agrees that all Instructions
received by ING Financial, which will be transmitted to Quasar (on its own behalf or
through its transfer agent) for processing as of a particular Business Day, will have been
received and time stamped prior to the Close of Trading on that previous Business Day.
(d) ING Financial will wire payment, or arrange for payment to be wired, for such
purchase orders, in immediately available funds, to a Fund custodial account or accounts
designated by Quasar (on its own behalf or through its transfer agent), as soon as
possible, but in any event no later than 4:00 p.m., East Coast time on the same Business
Day on which such purchase orders are made by ING in conformance with Section 3(c).
(e) Quasar (on its own behalf or through its transfer agent) or its designees will
wire payment, or arrange for payment to be wired, for redemption orders, in immediately
available funds, to an account or accounts designated by ING Financial, as soon as
possible, but in any event no later than 4:00 p.m. East Coast time on the same Business
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Day on which such redemption orders are received by Quasar (on its own behalf or
through its transfer agent) in conformance with Section 3(c).
(f) In lieu of applicable provisions set forth in paragraphs 3(a) through 3(e)
above, the parties may agree to provide pricing information, execute orders and wire
payments for purchases and redemptions through National Securities Clearing
Corporation's Fund/SERV System, in which case such activities will be governed by the
provisions set forth in Exhibit I to this Agreement.
(g) Upon Quasar request, ING shall provide copies of historical records relating to
transactions between the Funds and the Contract owners, Plan Representatives or
Participants investing in such Funds, written communications regarding the Funds to or
from such persons, and other materials, in each case, as may reasonably be requested to
enable Quasar or any other designated entity, including without limitation, auditors,
investment advisers, or transfer agents of the Funds to monitor and review the services
being provided under this Agreement, or to comply with any request of a governmental
body or self-regulatory organization or a shareholder. ING also agrees that ING will
permit Quasar or the Funds, or any duly designated representative to have reasonable
access to ING's personnel and records in order to facilitate the monitoring of the quality
of the services being provided under this Agreement.
(h) ING Financial shall assume responsibility as herein described for any loss to a
Fund caused by a cancellation or correction made to an Instruction by a Contract owner,
Plan Representative or Participant subsequent to the date as of which such Instruction has
been received by ING Financial and originally relayed to Quasar (on its own behalf or
through its transfer agent), and ING Financial will immediately pay such loss to such
Fund upon ING Financial's receipt of written notification, with supporting data.
(i) Quasar shall indemnify and hold ING harmless, from the effective date of this
Agreement, against any amount ING is required to pay to Contract owners, Plans, Plan
Representatives or Participants due to: (i) an incorrect calculation of a Fund's daily net
asset value, dividend rate, or capital gains distribution rate or (ii) incorrect or late
reporting of the daily net asset value, dividend rate, or capital gain distribution rate of a
Fund, upon written notification by ING, with supporting data, to Quasar. In addition,
Quasar shall be liable to ING for systems and out of pocket costs incurred by ING in
making a Contract owner's, a Plan's or a Participant's account whole, if such costs or
expenses are a result of the Fund's failure to provide timely or correct net asset values,
dividend and capital gains or financial information. 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 Plan's or a Participant's
account whole shall be borne by the party providing the incorrect information, regardless
of when the error is corrected.
(j) Each party shall notify the other of any errors or omissions in any information,
including a net asset value and distribution information set forth above, and interruptions
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in or delay or unavailability of, the means of transmittal of any such information as
promptly as possible. ING Financial and Quasar agree to maintain reasonable errors and
omissions insurance coverage commensurate with each party's respective responsibilities
under this Agreement.
4. 12b-1 Fees.
To compensate ING Financial for its distribution of Fund Shares, Quasar shall make
quarterly payments to ING Financial based on the annual rate of 0.25% (0.0625%
quarterly) of the average net assets invested in the Funds through the Contracts or through
ING Life's arrangements with Plans in each calendar quarter. Quasar will make such
payments to ING Financial within thirty (30) days after the end of each calendar quarter.
Each payment will be accompanied by a statement showing the calculation of the fee
payable to ING Financial for the quarter and such other supporting data as may be
reasonably requested by ING Financial. If required by a Plan or by applicable law, ING
Financial shall have the right to allocate to a Plan or to Participant accounts in a Plan all
or a portion of such 12b-1 fees, or to use 12b-1 fees it collects from Quasar to offset other
fees payable by the Plan to ING Financial.
5. Expenses.
Quasar shall make available for reimbursement certain out-of-pocket expenses ING
Life incurs in connection with providing shareholder services to Contract owners or the
Plans. These expenses include actual postage paid by ING Life in connection with
mailing updated prospectuses, supplements and financial reports to Contract owners or
Plan Representatives or Participants for which ING Life provides shareholder services
hereunder, and all costs incurred by ING Life associated with proxies for the Fund,
including proxy preparation, group authorization letters, programming for tabulation and
necessary materials (including postage). Except as otherwise agreed in writing, ING shall
bear all other expenses incidental to the performance of the services described herein.
Quasar shall, however, provide ING, or at ING's request, the Plan, with such sufficient
copies of relevant prospectuses for all Participants making an initial Fund purchase as
well as relevant prospectuses, prospectus supplements and periodic reports to
shareholders, and other material as shall be reasonably requested by ING to disseminate
to Plan participants who purchase shares of the Funds.
6. Termination.
This Agreement shall terminate as to the maintenance of the Account:
(a) At the option of either ING Life, ING Financial, or Quasar upon sixty (60)
days advance written notice to the other parties;
(b) At the option of ING Life or ING Financial, if shares of the Funds are not
available for any reason to meet the investment requirements of the Contracts or the
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Plans; provided, however, that prompt advance notice of election to terminate shall be
furnished by the terminating entity;
(c) At the option of either ING Financial or Quasar, upon institution of formal
disciplinary or investigative proceedings against ING Financial, Quasar or the Funds by
the National Association of Securities Dealers, Inc. ("NASD"), SEC, or any other
regulatory body;
(d) At the option of Quasar, if Quasar shall reasonably determine in good faith
that shares of the Funds are not being offered in conformity with the terms of this
Agreement;
(e) At the option of ING, upon termination of the management agreement
between the Fund and Adviser; written notice of such termination shall be promptly
furnished to ING;
(f) Upon the determination of ING Life to substitute for the Fund's shares the
shares of another investment company in accordance with the terms of the applicable
Contracts. ING Life will give 60 days' written notice to the Fund and the Adviser of any
decision to replace the Fund's shares;
(g) Upon assignment of this Agreement by any party, unless made with the
written consent of all other parties hereto; provided, however, that ING Financial and
ING Life may assign, without consent of Quasar or Adviser, their respective duties and
responsibilities under this Agreement to any of their affiliates, and provided, further, that
ING Financial or ING Life may enter into subcontracts with other dealers for the
solicitation of sales of shares of the Funds without the consent of Quasar or Adviser, or
(h) If the Fund's shares are not registered, issued or sold in conformance with
federal law or such law precludes the use of Fund shares as an investment vehicle for the
Contracts or the Plans; provided, however, that prompt notice shall be given by any party
should such situation occur.
7. Continuation of Agreement.
Termination as the result of any cause listed in Section 6 hereof shall not affect the
Funds' respective obligations to continue to maintain the Account as an investment option
for Contracts then in force for which its shares serve or may serve as the underlying
medium, or for Plans electing to invest in the Funds prior to the termination of this
Agreement.
8. | Advertising and Related Materials. |
(a) Advertising and literature with respect to the Funds prepared by ING Financial | |
or the Nominee or its agents for use in marketing shares of the Funds to Contract owners
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or Plans (except any material that simply lists the Funds' names) shall be submitted to the
Adviser for review and approval before such material is used with the general public or
any Contract owner, Plan, Plan Representative, or Participant. Quasar or the Adviser
shall advise the submitting party in writing within three (3) Business Days of receipt of
such materials of its approval or disapproval of such materials.
(b) Quasar or the Adviser will provide to ING at least one complete copy of all
prospectuses, statements of additional information, annual and semiannual reports and
proxy statements, other related documents, and all amendments or supplements to any of
the above documents that relate to the Funds promptly after the filing of such document
with the SEC or other regulatory authorities.
(c) Quasar or the Adviser will provide via Excel spreadsheet diskette format or in
electronic transmission to ING at least quarterly portfolio information necessary to update
Fund profiles with seven business days following the end of each quarter.
9. Proxy Voting.
ING or the Nominee will distribute to Contract owners, Plan Representatives or
Participants all proxy materials furnished by Quasar or its designees for the Funds. ING
and the Nominee shall not oppose or interfere with the solicitation of proxies for Fund
shares held for such beneficial owners.
10. | Indemnification. |
(a) ING agrees to indemnify and hold harmless Quasar, the Funds, Adviser and | |
each of their directors, officers, employees, agents and each person, if any, who controls
the Funds or the Adviser within the meaning of the Securities Act of 1933 ("1933 Act")
against any losses, claims, damages or liabilities to which Quasar, the Funds, Adviser or
any such director, officer, employee, agent, or controlling person may become subject,
insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) (i)
arise out of, or are based upon, the provision of administrative services by ING Life under
this Agreement, or (ii) result from a breach of a material provision of this Agreement.
ING will reimburse any legal or other expenses reasonably incurred by Quasar or any
such director, officer, employee, agent, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that ING will not be liable for indemnification hereunder to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon the gross
negligence or willful misconduct of Quasar or any such director, officer, employee, agent
or any controlling person herein defined in performing their obligations under this
Agreement.
(b) Quasar agrees to indemnify and hold harmless each of ING Financial and ING
Life, the Nominee and each of their directors, officers, employees, agents and each
person, if any, who controls ING Financial and ING Life and the Nominee within the
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meaning of the 1933 Act against any losses, claims, damages or liabilities to which ING
Financial or ING Life, the Nominee, or any such director, officer, employee, agent or
controlling person may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue
statement of any material fact contained in the registration statement, prospectus or sales
literature of the Funds or arise out of, or are based upon, the omission or the alleged
omission to state a material fact that is necessary to make the statements therein not
misleading or (ii) result from a breach of a material provision of this Agreement. Quasar
will reimburse any legal or other expenses reasonably incurred by ING Financial or ING
Life, the Nominee, or any such director, officer, employee, agent, or controlling person in
connection with investigation or defending any such loss, claim, damage, liability or
action; provided, however, that will not be liable for indemnification hereunder to the
extent that any such loss, claim, damage or liability arises out of, or is based upon, the
gross negligence or willful misconduct of ING Financial or ING Life, the Nominee or
their respective directors, officers, employees, agents, or any controlling person herein
defined in the performance of their obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice of the
commencement of action, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party hereunder, notify the indemnifying party of the
commencement thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party otherwise than under
this Section 10. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish to, assume the defense
thereof, with counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of investigation.
11. | Representations and Warranties. | |
(a) | Representations of ING Life. ING Life represents and warrants: | |
(i) that it (1) is a life insurance company organized under the laws of the | ||
State of Connecticut, (2) is in good standing in that jurisdiction, (3) is in material
compliance with all applicable federal and state insurance laws, (4) is duly licensed and
authorized to conduct business in every jurisdiction where such license or authorization is
required, and will maintain such license or authorization in effect at all times during the
term of this Agreement, and (5) has full authority to enter into this Agreement and carry
out its obligations pursuant to it terms; and
(ii) that it is authorized under the Plans to (1) provide administrative
services to the Plans and (2) facilitate transactions in the Fund through the Account.
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(b) | Representations of ING Financial. ING Financial represents and warrants: (i) that it (1) is a member in good standing of the NASD, (2) is registered as |
a broker-dealer with the SEC, and (3) will continue to remain in good standing and be so
registered during the term of this Agreement;
(ii) that it (1) is a limited liability company duly organized under the laws of
the State of Delaware , (2) is in good standing in that jurisdiction, (3) is in material
compliance with all applicable federal, state and securities laws, (4) is duly registered and
authorized to conduct business in every jurisdiction where such registration or
authorization is required, and will maintain such registration or authorization in effect at
all times during the term of this Agreement, and (5) has full authority to enter into this
Agreement and carry out its obligations pursuant to the terms of this Agreement;
(iii) that it is authorized under the Plans to make available investments of
Plan assets in the name of the Nominee of each Plan or in the name of ING Life in shares
of investment companies or other investment vehicles specified by Plan Representatives
or Participants; and
(iv) that it will not, without the written consent of Distributor, make
representations concerning shares of the Funds except those contained in the then-current
prospectus and in the current printed sales literature approved by either the Fund or
Distributor.
(c) | Representations of Quasar. Quasar represents and warrants: |
(i) that the Funds (1) are duly organized under the laws of the state of | |
Delaware, (2) are in good standing in such jurisdictions, (3) are in material compliance
with all applicable federal, state and securities laws, and (4) are duly licensed and
authorized to conduct business in every jurisdiction where such license or authorization is
required;
(ii) that the shares of the Funds are registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the States and all
applicable federal, state, and securities laws; that the Funds amend their registration
statements under the 1933 Act and the 1940 Act from time to time as required or in order
to effect the continuous offering of its shares; and that the Funds have registered and
qualified its shares for sale in accordance with the laws of each jurisdiction where it is
required to do so;
(iii) that the Funds are currently qualified as regulated investment companies
under Subchapter M of the Internal Revenue Code of 1986, as amended, and will make
every effort to maintain such qualification, and that Quasar will notify ING Financial and
ING Life immediately upon having a reasonable basis for believing that any of the Funds
9
have ceased to so qualify or that any might not qualify in the future;
(c) | Representations of the Adviser. The Adviser represents and warrants: (i) that it (1) is duly organized under the laws of the state of Texas (2) is in |
good standing in such jurisdictions, (3) is in material compliance with all applicable
federal, state and securities laws, (4) is duly licensed and authorized to conduct business
in every jurisdiction where such license or authorization is required, and (4) it is duly
registered as investment adviser under the Adviser's Act.
12. Governing Law.
This Agreement and all the rights and obligations of the parties shall be governed
by and construed under the laws of the State of Delaware without giving effect to the
principles of conflicts of laws and the provisions shall be continuous.
13. | Miscellaneous. |
(a) Amendment and Waiver. Neither this Agreement nor any provision hereof | |
may be amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be given or
made in writing and shall be delivered personally, or sent by telex, facsimile, express
delivery, or registered or certified mail, postage prepaid, return receipt requested, to the
party or parties to whom they are directed at the following address, or at such other
addresses as may be designated by notice from such party to all other parties.
To ING Financial/ING Life Insurance and Annuity Company:
ING Financial Advisers, LLC/ING Life Insurance and Annuity Company | |
000 Xxxxxxxxxx Xxxxxx | |
Xxxxxxxx, XX 00000 | |
Attention: Xxxx Xxxxxxx | |
(000) 000-0000 | |
To | Quasar: |
Quasar Distributors, LLC | |
000 Xxxx Xxxxxxxx Xxxxxx | |
Xxxxxxxxx, Xxxxxxxxx 00000 | |
Attention: Dealer Agreement Department |
To Adviser:
Xxxxxx Xxxx Capital Management Corporation
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Any notice, demand or other communication given in a manner prescribed in this
Subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and any party
hereto may execute this Agreement by signing any such counterpart.
(e) Severability. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby.
(f) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter hereof, and
supersedes all prior agreement and understandings relating to such subject matter.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by
their duly authorized officers as of the date first written above.
ING LIFE INSURANCE AND ANNUITY COMPANY
By /s/ Xxxxxx X. Xxxxxxxxxxx
Name Xxxxxx X. Xxxxxxxxxxx
Title Vice President
ING FINANCIAL ADVISERS, LLC
By /s/ Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Title Vice President
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QUASAR DISTRIBUTORS, LLC
By /s/ Xxxxx Xxxxxxxxx
Name Xxxxx Xxxxxxxxx
Title President
XXXXXX XXXX CAPITAL MANAGEMENT CORPORATION
By /s/ Xxxxxxx Xxxxxx
Name Xxxxxxx Xxxxxx
Title President
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Schedule A
LKCM Equity Fund Adviser Class (LKEAX)*
LKCM Small Cap Equity Fund Adviser Class (LKSAX)*
LKCM Aquinas Growth Fund (AQEGX)*
LKCM Aquinas Value Fund (AQEIX)*
LKCM Aquinas Small Cap Fund (AQBLX)*
*12b-1 Distribution Plan (____%)
For any additional separate accounts
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EXHIBIT I
To
SELLING AND SERVICES AGREEMENT
Procedures for Pricing and Order/Settlement Through National Securities Clearing Corporation's
Mutual Fund Profile System and Mutual Fund Settlement, Entry and Registration Verification System
1. As provided in Section 3(f) of the Selling and Services Agreement and Fund
Participation Agreement, the parties hereby agree to provide pricing information, execute
orders and wire payments for purchases and redemptions of Fund shares through National
Securities Clearing Corporation ("NSCC") and its subsidiary systems as follows:
(a) | Quasar or the Funds will furnish to ING Financial or its affiliate through NSCC's Mutual Fund Profile System ("MFPS") (1) the most current net asset value information for each Fund, (2) a schedule of anticipated dividend and distribution payment dates for each Fund, which is subject to change without prior notice, ordinary income and capital gain dividend rates on the Fund's ex-date, and (3) in the case of fixed income funds that declare daily dividends, the daily accrual or the interest rate factor. All such information shall be furnished to ING Financial or its affiliate by 6:30 p.m. Eastern Time on each business day that the Fund is open for business (each a "Business Day") or at such other time as that information becomes available. Changes in pricing information will be communicated to both NSCC and ING Financial or its affiliate. |
(b) | Upon receipt of Fund purchase, exchange and redemption instructions for acceptance as of the time at which a Fund's net asset value is calculated as specified in such Fund's prospectus ("Close of Trading") on each Business Day ("Instructions"), and upon its determination that there are good funds with respect to Instructions involving the purchase of Shares, ING Financial or its affiliate will calculate the net purchase or redemption order for each Fund. Orders for net purchases or net redemptions derived from Instructions received by ING Financial or its affiliate prior to the Close of Trading on any given Business Day will be sent to the Defined Contribution Interface of NSCC's Mutual Fund Settlement, Entry and Registration Verification System ("Fund/SERV") by 5:00 a.m. Eastern Time on the next Business Day. Subject to ING Financial's or its affiliate's compliance with the foregoing, ING Financial or its affiliate will be considered the agent of Quasar and the Funds, and the Business Day on which Instructions are received by ING Financial or its affiliate in proper form prior to the Close of Trading will be the date as of which shares of the Funds are deemed purchased, exchanged or redeemed pursuant to such Instructions. Instructions received in proper form by ING Financial or its affiliate after the Close of Trading on any given Business Day will be treated as if received on the next following Business Day. Dividends and capital gains distributions will be automatically reinvested at net asset value in accordance with the Fund's then current prospectuses. |
(c) | ING Financial or its affiliate will wire payment for net purchase orders by the Fund's NSCC Firm Number, in immediately available funds, to an NSCC settling bank account |
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designated by ING Financial or its affiliate no later than 5:00 p.m. Eastern time on the same Business Day such purchase orders are communicated to NSCC. For purchases of shares of daily dividend accrual funds, those shares will not begin to accrue dividends until the day the payment for those shares is received. | |
(d) | NSCC will wire payment for net redemption orders by Fund, in immediately available funds, to an NSCC settling bank account designated by ING Financial or its affiliate, by 5:00 p.m. Eastern Time on the Business Day such redemption orders are communicated to NSCC, except as provided in a Fund's prospectus and statement of additional information. |
(e) | With respect to (c) or (d) above, if Quasar does not send a confirmation of ING Financial's or its affiliate's purchase or redemption order to NSCC by the applicable deadline to be included in that Business Day's payment cycle, payment for such purchases or redemptions will be made the following Business Day. |
(f) | If on any day ING Financial or its affiliate or Quasar 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 Quasar or to ING Financial or its affiliate, as applicable, as is otherwise provided in the Agreement. |
(g) | These procedures are subject to any additional terms in each Fund's prospectus and the requirements of applicable law. The Funds reserve the right, at their discretion and without notice, to suspend the sale of shares or withdraw the sale of shares of any Fund. |
2. ING Financial or its affiliate, Quasar and clearing agents (if applicable) are each
required to have entered into membership agreements with NSCC and met all
requirements to participate in the MFPS and Fund/SERV systems before these procedures
may be utilized. Each party will be bound by the terms of their membership agreement
with NSCC and will perform any and all duties, functions, procedures and responsibilities
assigned to it and as otherwise established by NSCC applicable to the MFPS and
Fund/SERV system and the Networking Matrix Level utilized.
3. Except as modified hereby, all other terms and conditions of the Agreement shall
remain in full force and effect. Unless otherwise indicated herein, the terms defined in the
Agreement shall have the same meaning as in this Exhibit.
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