EXHIBIT 99-B.3(g)
AMENDMENT TO AND RESTATEMENT OF DISTRIBUTION AGREEMENT
AMENDMENT TO AND RESTATEMENT OF DISTRIBUTION AGREEMENT originally dated December
27, 1988, by and between Golden American Life Insurance Company, ("Golden
American") a Minnesota corporation, on its own behalf and on behalf of the
Western Capital Specialty Managers Separate Account B ("Account") and Directed
Services, Inc., ("DSI"), a New York corporation.
WHEREAS, the Account was subsequently renamed Golden American Separate
Account B, and
WHEREAS, effective January 1, 2004, Golden American redomesticated and became an
Iowa corporation and was renamed ING USA Annuity and Life Insurance Company
("ING USA") and the Account was renamed ING USA Separate Account B;
WHEREAS, effective January 1, 2004, the Account is a separate account
established and maintained by ING USA pursuant to the laws of the State of Iowa
for variable annuity contracts issued by ING USA under which income, gains, and
losses, whether or not realized, from assets allocated to such Account, are
credited to or charged against such Account without regard to other income,
gains or losses of ING USA; and
WHEREAS, ING USA proposes to continue to issue and sell Annuity Contracts
through the Account to suitable purchasers; and
WHEREAS, DSI is duly registered as a broker-dealer under the Securities Exchange
Act of 1934 ("1934 Act") and is a member of the National Association of
Securities Dealers, Inc. ("NASD"); and
WHEREAS, ING USA and DSI desire to continue the agreement pursuant to which DSI
will act as a principal underwriter for the sale of the Annuity Contracts and
may distribute the Annuity Contracts through one or more organizations as set
forth in Section 2. below.
NOW, THEREFORE, ING USA and DSI hereby agree as follows:
1. TERM
This Agreement shall remain in force until it is terminated in accordance with
the provisions of paragraph 13.
2. PRINCIPAL UNDERWRITER.
ING USA hereby appoints DSI and DSI accepts such appointment, during the term of
this Agreement, subject to any registration requirements of The Securities Act
of 1933 ("1933 Act"), The Investment Company Act of 1940 ("1940 Act"), and the
provisions of the 1934 Act, to be a distributor and principal underwriter of the
Annuity Contracts issued through the Account. DSI shall offer the Annuity
Contracts for sale and distribution at premium rates to be set by ING USA and
GFG. Annuity Contracts may be sold only by persons who are duly licensed annuity
agents appointed by ING USA and NASD registered representatives as set forth in
Section 3 below. ING USA hereby appoints DSI as its agent for the sale of
Annuity Contracts in such jurisdictions as ING USA is properly licensed to sell
Annuity Contracts.
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3. SALES AGREEMENTS.
DSI is hereby authorized to enter into separate written agreements, ("Sales
Agreements"), on such terms and conditions as DSI may determine not to be
inconsistent with this Agreement, with broker/dealers which agree to participate
in the distribution of and to use their best efforts to solicit applications for
Annuity Contracts. Such broker/dealers and their agents or representatives
soliciting applications for Annuity Contracts shall be duly and appropriately
licensed, registered or otherwise qualified for the sale of Annuity Contracts
under the insurance laws and any applicable securities laws of each state or
other jurisdiction in which the Annuity Contracts may be lawfully sold and in
which ING USA is licensed to sell Annuity Contracts. Each such broker/dealer
shall be both registered as a broker-dealer under the 1934 Act and a member of
the NASD, or if not so registered or not such a member, then the agents and
representatives of such organization soliciting applications for Annuity
Contracts shall be agents and registered representatives of a registered
broker/dealer and NASD member which is the parent or other affiliate of such
organization and which maintains full responsibility for the training,
supervision, and control of the agents and representatives selling Annuity
Contracts.
DSI shall have the responsibility for the supervision of all such broker/dealers
to the extent required by law and shall assume any legal responsibilities of ING
USA for the acts, commissions or defalcations of any such broker/dealers.
Applications materials for Annuity Contracts solicited by such broker/dealers
through their agents or representatives shall be forwarded to DSI. All payments
for Annuity Contracts shall be remitted promptly by such broker/dealers directly
to ING USA.
If held at any time by DSI or a broker-dealer, such payments shall be held in a
fiduciary capacity as agent for ING USA and shall be remitted promptly to ING
USA. All such payments, whether by check, money order, or wire order, shall be
the property of ING USA. Anything in this Distribution Agreement to the contrary
notwithstanding, ING USA shall retain the rights to control the sale of Annuity
Contracts and to appoint and discharge annuity agents for the sale of Annuity
Contracts. DSI shall be held to the exercise of reasonable care in carrying out
the provisions of this Distribution Agreement
4. ANNUITY AGENTS.
DSI is authorized to appoint the broker/dealers described in paragraph 3. above
as agents of ING USA for the sale of Annuity Contracts. ING USA will undertake
to appoint such as agents authorized to represent ING USA in the appropriate
states or jurisdictions; provided that ING USA reserves the right to refuse to
appoint any proposed agent, or once appointed to terminate the same without
notice.
5. SUITABILITY.
ING USA wishes to ensure that the Annuity Contracts distributed by DSI will be
issued to purchasers for whom the Annuity Contracts shall be suitable. DSI shall
take reasonable steps to ensure that the various agents appointed by it to sell
Annuity Contracts shall not make recommendations to an applicant to purchase
Annuity Contracts in the absence of reasonable grounds to believe that the
purchase of Annuity Contracts is suitable for such applicant. While not limited
to the following, a determination of suitability shall be based on information
furnished to an agent after reasonable inquiry concerning the applicant's
insurance and investment objectives and financial situation and needs.
6. SALES MATERIALS.
The responsibility of the parties hereto for consulting with respect to the
design and the drafting and legal review and filing of sales materials, and for
the preparation of sales proposals related to the sale of Annuity Contracts
shall be as the parties hereto agree in writing. DSI shall ensure, in its Sales
Agreements, that organizations appointed by it, and registered representatives
of such organizations, shall not use, develop or distribute any sales materials
which have not been approved by ING USA.
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7. REPORTS.
DSI shall have the responsibility for, with respect to agents appointed by it,
maintaining the records of agents licensed, registered and otherwise qualified
to sell Annuity Contracts, and for furnishing periodic reports to ING USA as to
the sale of Annuity Contracts made pursuant to this Agreement
8. RECORDS.
DSI shall maintain and preserve for the periods prescribed by law or other
agreement, such accounts, books, and other documents as are required of it by
applicable laws and regulations. The books, accounts and records of ING USA, the
Account and DSI as to all transactions hereunder shall be maintained so as to
clearly and accurately disclose the nature and details of the transactions,
including such accounting information as necessary to support the reasonableness
of the amounts to be paid by ING USA hereunder.
9. COMPENSATION.
ING USA shall pay DSI the compensation due it as set forth in the attached
Exhibit, as such Exhibit may from time to time be amended.
10. INDEPENDENT CONTRACTOR.
DSI shall act as an independent contractor and nothing herein contained shall
constitute DSI or its agents or employees as employees of ING USA in connection
with the sale of Annuity Contracts.
11. INVESTIGATION AND PROCEEDINGS.
(a) DSI and ING USA agree to cooperate fully in insurance regulatory
investigations or proceedings or judicial proceedings arising in
connection with the offering, sale or distribution of Annuity Contracts
distributed under this Agreement DSI and ING USA further agree to
cooperate fully in any securities regulatory investigation or proceeding
or judicial proceeding with respect to ING USA, DSI, their affiliates and
their agents or representatives to the extent that such investigation or
proceeding is in connection with the Annuity Contracts offered, sold or
distributed under this Agreement Without limiting the foregoing
(i) DSI will be notified promptly of any customer complaint or
notice of any regulatory investigation or proceeding or
judicial proceeding received by ING USA with respect to DSI or
any agent or representative or which may affect ING USA's
issuance of Annuity Contracts marketed under this Agreement.
(ii) DSI will promptly notify ING USA of any customer complaint or
notice of any regulatory investigation or proceeding received
by DSI or its affiliates with respect to DSI or any agent or
representative in connection with any Annuity Contracts
distributed under this Agreement or any activity in connection
with Annuity Contracts.
(b) In the case of a substantive customer complaint, DSI and ING USA
will cooperate in investigating such complaint and any response to
such complaint will be sent to the other party to this Agreement for
approval not less than five business days prior to its being sent to
the customer or regulatory authority, except that if a more prompt
response is required, the proposed response shall be communicated by
telephone or telegraph.
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12. INDEMNIFICATION
(a) ING USA agrees to indemnify and hold harmless DSI and its affiliates
and each officer and director thereof against any losses, claims,
damages or liabilities, joint or several, to which DSI or its
affiliates or such officer or director may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact, required to be stated therein or necessary to make
the statements therein not misleading, contained
(i) in any prospectus, or any amendment thereof, or
(ii) in any blue-sky application or other document executed by ING
USA specifically for the purpose of qualifying Annuity
Contracts for sale under the securities laws of any
jurisdiction.
ING USA will reimburse DSI and each officer or director, for any
legal or other expenses reasonably incurred by DSI or such officer
or director in connection with investigating or defending any such
loss, claim, damage, liability or action; provided that ING USA will
not be liable in any such case to the extent that such loss, claim,
damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information
(including, without limitation, negative responses to inquiries)
furnished to ING USA by or on behalf of DSI specifically for use in
the preparation of any prospectus or any amendment thereof or any
such blue-sky application or any amendment thereof or supplement
thereto.
(b) DSI agrees to indemnify and hold harmless ING USA and its directors,
each of its officers who has signed the registration statement and
each person, if any, who controls ING USA within the meaning of the
1933 Act or the 1934 Act, against any losses, claims, damages or
liabilities to which ING USA and any such director or officer or
controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon:
(i) Any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading, contained (a) in any
prospectus or any amendments thereof, or, (b) in any blue-sky
application, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and
in conformity with information (including without limitation,
negative responses to inquiries) furnished to ING USA by DSI
specifically for 'use in the preparation of any prospectus or
any amendments thereof or any such blue-sky application or any
such amendment thereof or supplement thereto; or
(ii) Any unauthorized use of sales materials or any verbal or
written misrepresentations or any unlawful sales practices
concerning Annuity Contracts by DSI; or
(iii) Claims by agents or representatives or employees of DSI for
commissions, service fees, expense allowances or other
compensation or remuneration of any type.
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DSI will reimburse ING USA and any director or officer or
controlling person for any legal or other expenses reasonably
incurred by ING USA, such director or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in
addition to any liability which DSI may otherwise have.
(c) Promptly after receipt by a party entitled to indemnification
("indemnified party") under this paragraph 12 of notice of the
commencement of any action, if a claim in respect thereof is to be
made against any person obligated to provide indemnification under
this paragraph 12 ("indemnifying party"), such indemnified party
will notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability under this paragraph 12, except to
the extent that the omission results in a failure of actual notice
to the indemnifying party and such indemnifying party is damaged
solely as a result of the failure to give such notice. 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
separate counsel satisfactory to the indemnified party. Such
participation shall not relieve such indemnifying party of the
obligation to reimburse the indemnified party for reasonable legal
and other expenses incurred by such indemnified party in defending
himself except for such expenses incurred after the indemnifying
party has deposited funds sufficient to effect the settlement, with
prejudice, of the claim in respect of which indemnity is sought. Any
such indemnifying party shall not be liable to any such indemnified
party on account of any settlement of any claim or action effected
without the consent of such indemnifying party.
(d) The indemnity agreements contained in this paragraph 12 shall remain
operative and in full force and effect, regardless of:
(i) any investigation made by or on behalf of DSI or any officer or
director thereof or by or on behalf of ING USA;
(ii) delivery of any Annuity Contracts and payments therefore; or
(iii) any termination of this Agreement.
A successor by law of DSI or of any of the parties to this Agreement, as
the case may be, shall be entitled to the benefits of the indemnity
agreements contained in this paragraph 12.
13. TERMINATION.
(a) This Agreement may be terminated at any time by mutual consent of
the parties;
(b) Either party may terminate if the other materially breaches any of
the terms of this Agreement and fails to cure the breach within
sixty days of notification by the other party of such breach;
(c) Upon termination of this Agreement all authorizations, rights and
obligations shall cease except:
(i) the obligation to settle accounts hereunder, including
commissions for Annuity Contracts in effect at the time of
termination;
(ii) the agreements contained in paragraph 11 hereof; and
(iii) the indemnity set forth in paragraph 12 hereof.
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14. REGULATION.
This Agreement shall be subject to the provisions of the 1940 Act and the
1934 Act and the rules, regulations, and rulings thereunder and of the
NASD, from time to time in effect, including such exemptions from the 1940
Act as the SEC may grant, and the terms hereof shall be interpreted and
construed in accordance therewith.
DSI shall submit to all regulatory and administrative bodies having
jurisdiction over the operations of ING USA or the Account, present or
future, any information, reports or other material which any such body by
reason of this Agreement may request or require pursuant to applicable
laws or regulations.
15. SEVERABILITY.
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
16. GENERAL.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of New York.
A. Force Majeure
Either party may be excused for delay or failure to perform under this
Agreement if such delay or failure is due to the direct or indirect result
of acts of God or government, war or national emergency, or for any cause
beyond the reasonable control of either party.
B. Entire Agreement
This Agreement and any attachments hereto and the material incorporated
herein by reference set forth the entire agreement between the parties,
and supercede all prior representations, agreements and understandings,
written or oral. Changes in the Agreement may be made only in a writing
signed by both the parties hereto.
C. Notices
All notices or other communications under this Agreement shall be in
writing and, unless otherwise specifically provided for herein, shall be
deemed given when addressed
(a) if to ING USA:
Xxxxxxxx X. Xxxxx
ING USA Annuity and Life Insurance Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
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(b) if to DSI:
Xxxxx X. Xxxxxxxx
Directed Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
D. Successors, Assigns
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. Neither this
Agreement nor any right hereunder may be assigned without the written
consent of the other parties.
E. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
F. Severability
If any term or provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of terms
and provisions of this Agreement shall remain in full force and effect and
shall not be affected or impaired thereby.
G. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original and all of which together shall constitute
one and the same instrument
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ING USA ANNUITY AND LIFE INSURANCE COMPANY
/s/Xxxxx X. Xxxxxxxx
--------------------
Xxxxx X. Xxxxxxxx
Vice President
Attest: Xxxxxxx X. Xxxxxxxx
-------------------
DIRECTED SERVICES, INC.
/s/Xxxxx X. Xxxxxxxx
--------------------
Xxxxx X. Xxxxxxxx
Vice President and Chief Compliance Officer
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