Exhibit 99-B.8(g): Form of Participation Agreement between Golden American Life
Insurance Company and Pilgrim Variable Products Trust
FORM OF PARTICIPATION AGREEMENT
AMONG
PILGRIM VARIABLE PRODUCTS TRUST
AND
[INSURANCE COMPANY]
AND
ING PILGRIM SECURITIES, INC.
THIS AGREEMENT, made and entered into as of this ____ day of April,
2001, among [Insurance Company] (the "Company"), a life insurance company
organized under the laws of [insert state], on its own behalf and on behalf of
each separate account of the Company as set forth on Schedule A hereto, as such
Schedule may be amended from time to time (each such account hereinafter
referred to as the "Account"), PILGRIM VARIABLE PRODUCTS TRUST (the "Trust"), an
open-ended management investment company and business trust organized under the
laws of Massachusetts, and ING PILGRIM SECURITIES, INC. (the "Distributor"), a
corporation organized under the laws of the State of Delaware.
WHEREAS, the Trust is an open-end diversified management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively, the "Variable Insurance Products") to be offered by insurance
companies which have entered into Participation Agreements with the Trust and
the Distributor (the "Participating Insurance Companies"); 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 ("ING Variable Insurance Trust,
ET AL., Investment Company Act Rel. No. 24439 (May 3, 2000)) 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 the Trust
to be sold to and held by variable annuity and variable life insurance separate
accounts of the Participating Insurance Companies (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 variable
life contracts under the 1933 Act and applicable state securities and insurance
law; and
WHEREAS, the Company represents herein that each Account is a duly
organized, validly existing separate account, which was established by
resolution of the Board of Directors of the Company, on the dates shown for such
Accounts on Schedule A hereto, to set aside and invest assets attributable to
one or more variable insurance contracts (the "Contracts"); and
WHEREAS, the Company has registered or will register the Accounts 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 insurance laws and
regulations, the Company intends to purchase shares in certain Funds
("Authorized Funds") on behalf of each Account to fund certain of the Contracts
and the Distributor is authorized to sell such shares to unit investment trusts
such as each Account at net asset value;
NOW, THEREFORE, in consideration of the promises herein, the Company,
the Trust and the Distributor agree as follows:
ARTICLE I
SALE OF TRUST SHARES
1.1. The Distributor agrees, subject to the Trust's rights under
Section 1.2 and otherwise under this Agreement, to sell to the Company those
Trust shares representing interests in Authorized Funds which each 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 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.
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 Account 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 Fund to the Company or any other person, or
suspend or terminate the offering of
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shares of any 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 Participating Insurance Companies and their
separate accounts and other persons who are permissible investors consistent
with the Accounts meeting the requirements of Treas. Reg. 1.817-5. No shares
of any Fund will be sold directly to the general public.
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 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. The Company shall purchase and redeem the shares of
Authorized Funds offered by the then-current prospectus of the Trust in
accordance with the provisions of such prospectus.
1.6. The Company shall pay for Trust shares on the next Business
Day after an order to purchase Trust shares is made in accordance with the
provisions of Section 1.1 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
Account. Shares ordered from the Trust will be recorded as instructed by the
Company to the Distributor in an appropriate title for each Account or the
appropriate sub-account of each 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 Fund shares in
additional shares of that Fund. The Company reserves the right to revoke this
election and to receive all such income dividends and capital gain
distributions in cash. The 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 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
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Distributor) to contractowners 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 Account or the appropriate subaccount of each Account, with
a prompt adjustment to the number of shares purchased or redeemed to reflect
the correct share net asset value.
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 under the 1933 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
Account prior to any issuance or sale thereof as a separate account under
applicable law and has registered or, prior to any issuance or sale of the
Contracts, will register each Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts; and
(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.
2.2. The Trust represents and warrants that
(a) at all times during the term of this Agreement,
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.
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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 Trust shares or the Trust by the Trust may
be required in connection with the sale of the 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.
ARTICLE III
PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Trust shall provide such documentation (including a
camera-ready copy of its prospectus) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Trust is amended) to have the prospectus for the Contracts
and the Trust's prospectus printed together in one or more documents (such
printing to be at the Company's expense).
3.2. The Trust's prospectus shall state that the Statement of
Additional Information ("SAI") for the Trust is available from the Company,
and the Company 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 Trust, as appropriate, agree to provide to Company with as
many copies of the SAI as reasonably requested by Company.
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. 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 Trust shares as required by law
and the Mixed and Shared Funding Exemptive Order. The Company reserves the
right to vote Trust shares held in any separate account in each Company's own
right, to the extent permitted by law and the 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.
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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 five (5) 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 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 five (5) 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 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 Account which are in the public domain or approved by the Company for
distribution to Contract owners, 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" 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
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.
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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 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, except postage which will be paid by the Company.
5.3. The Company shall bear the expenses of (a) printing and
distributing the Trust's prospectus in connection with sales of the
Contracts, (b) distributing the reports to the Trust's Shareholders who are
owners of the Contracts, (c) mailing the Trust's proxy materials to owners of
the Contracts, and (d) distributing the Trust's SAI to Shareholders who are
owners of the Contracts.
ARTICLE VI
DIVERSIFICATION
6.1 The Trust shall use its best efforts 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
provisions of Treasury Reg. ss. 1.817-5(b)(1) or (2).
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 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 (f) a decision by an insurer to disregard the voting instructions
of Contract owners. The Trust shall promptly inform the Company if the
Trustees determine that a material irreconcilable conflict exists and the
implications thereof.
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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, 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 and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract
owners, life insurance contract owners, or variable contract owners of one or
more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (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 a Company to disregard Contract owner voting instructions and
that decision represents a minority position or would preclude a majority
vote, that Company may be required, at the Trust's election, to withdraw the
affected Account's investment in one or more portfolios of the Trust and
terminate this Agreement with respect to such 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 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 that would preclude a majority vote, then the Company may
be required, at the Trust's direction, to withdraw the affected 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 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
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(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 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
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 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 to bear
the cost of such remedial action shall be the obligation of the Company, 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.
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 and ING Pilgrim Investments, LLC (the "Adviser"), and
each of the Trustees, directors of the Distributor or the Adviser, officers,
employees or agents of the Trust, the Distributor or the
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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 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 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 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 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
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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
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
(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
11
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
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 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 control, with respect to the sale or
distribution of the Contracts or 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 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
12
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 Account.
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 Delaware.
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 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
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
13
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 Account, upon requisite vote of
the Contract owners having an interest in such Account (or any subaccount) to
substitute the shares of another investment company for the corresponding
Fund shares of the Trust in accordance with the terms of the Contracts for
which those 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;
(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 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 Account no longer owns shares of the affected 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.
14
10.6. The Company shall not redeem Trust shares attributable to
the Contracts (as opposed to Trust shares attributable to the Company's
assets held in either Account) except (i) as necessary to implement Contract
owner 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 owners from allocating payments to
an Authorized Fund that was 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:
Pilgrim Variable Products Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: _________________________
If to the Distributor:
ING Pilgrim Securities, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: _________________________
If to the Company:
[Insurance Company]
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 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.
15
12.2. The Fund and the Distributor acknowledge that the
identities of the customers of the Company or any of its affiliates, except
for customers of the Fund or the Distributor or their affiliates
(collectively, the "Company Protected Parties" for purposes of this Section
12.2), information maintained regarding those customers, and all computer
programs and procedures or other information developed or used by the Company
Protected Parties or any of their employees or agents in connection with the
Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Fund and the Distributor agree
that if they come into possession of any list or compilation of the
identities of or other information about the Company Protected Parties'
customers, or any other information or property of the Company Protected
Parties, other than such information as is publicly available or as may be
independently developed or compiled by the Fund or the Distributor from
information supplied to them by the Company Protected Parties' customers who
also maintain accounts directly with the Fund or the Distributor, the Fund
and the Distributor will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or
other property except: (a) with the Company's prior written consent; or (b)
as permitted without customer consent under Title V of the Xxxxx-Xxxxx-Xxxxxx
Act and the applicable regulations thereunder or other applicable law. The
Company acknowledges that the identities of the customers of the Fund, the
Distributor or any of their affiliates (collectively, the "Fund Protected
Parties" for purposes of this Section 12.2), information maintained regarding
those customers, and all computer programs and procedures or other
information developed or used by the Fund Protected Parties or any of their
employees or agents in connection with the Fund's or the Distributor's
performance of their respective duties under this Agreement are the valuable
property of the Fund Protected Parties. The Company agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Fund Protected Parties' customers, or any other
information or property of the Fund Protected Parties, other than such
information as is publicly available or as may be independently developed or
compiled by the Company from information supplied to them by the Fund
Protected Parties' customers who also maintain accounts directly with the
Company, the Company will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or
other properly except: (a) with the Fund's or the Distributor's prior written
consent; or (b) as required by law or judicial process. Each party
acknowledges that any breach of the agreements in this Section 12.2 would
result in immediate and irreparable harm to the other parties for which there
would be no adequate remedy at law and agree that in the event of such a
breach, the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
12.3. The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and the
same instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
16
12.6. 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.
12.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies
and obligations, at law or in equity, which the parties hereto are entitled
to under state and federal laws.
12.8. 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
specified below.
[INSURANCE COMPANY]
By its authorized officer,
--------------------------------------------------
Name:
Title:
PILGRIM VARIABLE PRODUCTS TRUST
By its authorized officer,
--------------------------------------------------
Name:
Title:
ING PILGRIM SECURITIES, INC.
By its authorized officer,
-------------------------------------------------
Name:
Title:
17
SCHEDULE A
Contracts and Separate Accounts
A-1
SCHEDULE B
PILGRIM VARIABLE PRODUCTS TRUST
FUNDS
Pilgrim VP MagnaCap Portfolio
Pilgrim VP Research Enhanced Index Portfolio
Pilgrim VP Growth Opportunities Portfolio
Pilgrim XX XxxXxx Opportunities Portfolio
Pilgrim VP Growth + Value Portfolio
Pilgrim VP SmallCap Opportunities Portfolio
Pilgrim VP International Value Portfolio
Pilgrim VP High Yield Bond Portfolio
Pilgrim VP Worldwide Growth Portfolio
Pilgrim VP International SmallCap Growth Portfolio
Pilgrim VP International Portfolio
Pilgrim VP Emerging Countries Portfolio
Pilgrim VP Growth and Income Portfolio
Pilgrim VP LargeCap Growth Portfolio
Pilgrim VP Financial Services Portfolio
Pilgrim VP Convertible Portfolio
B-1
PARTICIPATION AGREEMENT
-----------------------
AMONG
GOLDEN AMERICAN LIFE INSURANCE COMPANY,
ING VARIABLE INSURANCE TRUST,
ING MUTUAL FUNDS MANAGEMENT CO. LLC
AND
ING FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, dated as of the 28th day of April 2000, by and among Golden
American Life Insurance Company (the "Company"), a life insurance company
organized under the laws of the State of Delaware, on its own behalf and on
behalf of each separate account of the Company set forth on Schedule A hereto as
may be amended from time to time (each such account hereinafter referred to as
the "Account"), ING Variable Insurance Trust (the "Fund"), a management
investment company and business trust organized under the laws of the State of
Delaware, ING Mutual Funds Management Co. LLC (the "Adviser"), a limited
liability company organized under the laws of the State of Delaware, and ING
Funds Distributors, Inc. (the "Distributor"), a corporation organized under the
laws of the State of Iowa.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund, Adviser and Distributor
("Participating Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided into
several series of shares, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund has obtained, or will obtain before entering into a
Participation Agreement with any other party, an order from the Securities and
Exchange Commission (the "SEC") granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, if and to the extent necessary to permit shares of
the Fund to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
(the "Mixed and Shared Funding Exemptive Order"), and the parties to this
Agreement agree to comply with the conditions or undertakings specified in the
Mixed and Shared Funding Exemptive Order to the extent applicable to each such
party;
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolios are registered under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the Designated
Portfolios (as hereinafter defined) of the Fund, is duly registered as an
investment adviser under the federal Investment Advisers Act of 1940, as
amended;
WHEREAS, the Company has registered or will register certain variable
annuity contracts (the "Contracts") under the 1933 Act;
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by the Company under the insurance laws of the State of
Delaware, to set aside and invest assets attributable to the Contracts;
WHEREAS, the Company has registered the Account as a unit investment trust
under the 1940 Act;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or partially by the
Account (the "Contracts"), and said Contracts are listed in Schedule A hereto,
as it may be amended from time to time by mutual written agreement;
WHEREAS, the Distributor, which serves as distributor to the Fund, 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 insurance laws and
regulations, the Company intends to purchase shares in the Portfolios listed in
Schedule B hereto, as it may be amended from time to time by mutual written
agreement (the "Designated Portfolios") on behalf of the Account to fund the
aforesaid Contracts, and the Distributor is authorized to sell such shares to
the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser, and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
-------------------
1.1. The Fund agrees to sell to the Company those shares of the Designated
Portfolios that each Account or the appropriate subaccount of each Account
orders, executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of the order
for the shares of the Fund. For purposes of this Section 1.1, the Company will
be the designee of the Fund for receipt of such orders from each Account or the
appropriate subaccount of each Account and receipt by such designee will
constitute receipt by the Fund; provided that the Fund receives notice of such
order by 10:00 a.m. Eastern Time on the next following business day ("T+1").
"Business Day" will mean any day on which the New York Stock Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.2. The Company will pay for Fund shares on T+1 that an order to purchase
Fund shares is made in accordance with Section 1.1 above. Payment will be in
federal funds transmitted by wire. This wire transfer will be initiated by 12:00
p.m. Eastern Time.
1.3. The Fund agrees to make shares of the Designated Portfolios available
indefinitely for purchase at the applicable net asset value per share by
Participating Insurance Companies and their separate accounts on those days on
which the Fund calculates its Designated Portfolio net asset value pursuant to
rules of the SEC and the Fund shall use reasonable efforts to calculate such net
asset value on
-2-
each day the New York Stock Exchange is open for trading; provided, however,
that the Board of Trustees of the Fund (the "Fund Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Fund Board,
acting in good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of
such Portfolio.
1.4. On each Business Day on which the Fund calculates its net asset value,
the Company will aggregate and calculate the net purchase or redemption orders
for each Account or the appropriate subaccount of each Account maintained by the
Fund in which contractowner assets are invested. Net orders will only reflect
orders that the Company has received prior to the close of regular trading on
the New York Stock Exchange, Inc. (the "NYSE") (currently 4:00 p.m., Eastern
Time) on that Business Day. Orders that the Company has received after the close
of regular trading on the NYSE will be treated as though received on the next
Business Day. Each communication of orders by the Company will constitute a
representation that such orders were received by it prior to the close of
regular trading on the NYSE on the Business Day on which the purchase or
redemption order is priced in accordance with Rule 22c-1 under the 1940 Act.
Other procedures relating to the handling of orders will be in accordance with
the prospectus and statement of information of the relevant Designated Portfolio
or with oral or written instructions that the Distributor or the Fund will
forward to the Company from time to time.
1.5. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts, qualified pension
and retirement plans or such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended, (the "Internal
Revenue Code"), and regulations promulgated thereunder, the sale to which will
not impair the tax treatment currently afforded the Contracts. No shares of any
Portfolio will be sold to the general public except as set forth in this Section
1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for redemption. For purposes
of this Section 1.6, the Company will be the designee of the Fund for receipt of
requests for redemption from each Account or the appropriate subaccount of each
Account and receipt by such designee will constitute receipt by the Fund,
provided the Fund receives notice of request for redemption by 10:00 a.m.
Eastern Time on the next following Business Day. Payment will be in federal
funds transmitted by wire to the Company's account as designated by the Company
in writing from time to time, on the same Business Day the Fund receives notice
of the redemption order from the Company. The Fund reserves the right to delay
payment of redemption proceeds, but in no event may such payment be delayed
longer than the period permitted by the 0000 Xxx. The Fund will not bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds; the Company alone will be responsible for such action. If notification
of redemption is received after 10:00 a.m. Eastern Time, payment for redeemed
shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in accordance with
the provisions of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Purchase
and redemption orders for Fund shares will be recorded in an appropriate title
for each Account or the appropriate subaccount of each Account.
-3-
1.9. The Fund will furnish same day notice (by telecopier, followed by
written confirmation) to the Company of the declaration of any income, dividends
or capital gain distributions payable on each Designated Portfolio's shares. The
Company hereby elects to receive all such dividends and distributions as are
payable on the Designated Portfolio shares in the form of additional shares of
that Designated Portfolio. The Fund will notify the Company of the number of
shares so issued as payment of such dividends and distributions. The Company
reserves the right to revoke this election upon reasonable prior notice to the
Fund and to receive all such dividends and distributions in cash.
1.10. The Fund will make the net asset value per share for each Designated
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and will use its
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.
1.11. In the event adjustments are required to correct any error in the
computation of the net asset value of the Fund's shares, the Fund or the
Distributor will notify the Company as soon as practicable after discovering the
need for those adjustments that result in an aggregate reimbursement of $150 or
more to any one subaccount of each Account maintained by a Designated Portfolio
unless notified otherwise by the Company (or, if greater, results in an
adjustment of $10 or more to each contractowner's account). 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 Fund'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 or the
Adviser) to contractowners 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 Fund shall provide the Company, on behalf of the
Account or the appropriate subaccount of each Account, with a prompt adjustment
to the number of shares purchased or redeemed to reflect the correct share net
asset value.
1.12.
(a) The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
insurance companies (subject to Section 1.5 hereof) and the cash value of
the Contracts may be invested in other investment companies, provided,
however, that until this Agreement is terminated pursuant to Article X, the
Company shall promote the Designated Portfolios on the same basis as other
funding vehicles available under the Contracts and funding vehicles other
than those listed on Schedule B to this Agreement may be available for the
investment of the cash value of the Contracts.
(b) The Company shall not, without prior notice to the Advisor and the
Distributor (unless otherwise required by applicable law), take any action
to operate the Account as a management investment company under the 1940
Act.
(c) The Company shall not, without prior notice to the Advisor and the
Distributor (unless otherwise required by applicable law), induce
contractowners to change or modify the Fund or change the Fund's
distributor or investment adviser.
(d) The Company shall not, without prior notice to the Fund, induce
contractowners to vote on any matter submitted for consideration by the
shareholders of the Fund in a manner other than as recommended by the Fund
Board.
-4-
ARTICLE II. Representations and Warranties
------------------------------
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act and that the Contracts will be issued and sold in
compliance with all applicable federal and state laws, including 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 Account as a separate
account under applicable state law and has registered the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts, and that it will maintain such
registration for so long as any Contracts are outstanding. The Company will
amend the registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Account from time to time as
required in order to effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company will register and qualify
the Contracts for sale in accordance with the securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and at the
time of issuance will be treated as endowment, annuity or life insurance
contracts under applicable provisions of the Internal Revenue Code, and that it
will make every effort to maintain such treatment and that it will notify the
Fund and the Adviser 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.
2.3. The Company represents and warrants that it will not purchase shares
of the Designated Portfolios with assets derived from tax-qualified retirement
plans except, indirectly, through Contracts purchased in connection with such
plans.
2.4. The Fund represents and warrants that Fund shares of the Designated
Portfolios sold pursuant to this Agreement will be registered under the 1933 Act
and duly authorized for issuance in accordance with applicable law and that the
Fund is and will remain registered under the 1940 Act for as long as such shares
of the Designated Portfolios are outstanding. The Fund will amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Fund will register and qualify the shares of the Designated
Portfolios for sale in accordance with the laws of the various states only if
and to the extent deemed advisable by the Fund.
2.5. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and that it
will make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company immediately
upon having a reasonable basis for believing that it has ceased to so qualify or
that it might not so qualify in the future.
2.6. The Fund represents and warrants that in performing the services
described in this Agreement, the Fund will comply with all applicable laws,
rules and regulations. The Fund makes no representation as to whether any aspect
of its operations (including, but not limited to, fees and expenses and
investment policies, objectives and restrictions) complies with the insurance
laws and regulations of any state. The Fund and the Distributor agree that upon
request they will use their best efforts to furnish the information required by
state insurance laws so that the Company can obtain the authority needed to
issue the Contracts in the various states.
-5-
2.7. The Fund represents and warrants its Fund Board has formulated and
approved a plan under Rule 12b-1 to finance distribution expenses in accordance
with the 1940 Act.
2.8. The Distributor represents and warrants that it will distribute the
Fund shares of the Designated Portfolios in accordance with all applicable
federal and state securities laws including, without limitation, the 1933 Act,
the 1934 Act and the 0000 Xxx.
2.9. The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with applicable provisions of the 0000 Xxx.
2.10. The Distributor represents and warrants that it is and will remain
duly registered under all applicable federal and state securities laws and that
it will perform its obligations for the Fund in accordance in all material
respects with any applicable state and federal securities laws.
2.11. The Fund 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 Fund
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund 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. The Fund or the Distributor will provide the Company in conjunction
with the Company's standard printing cycle, at the Company's expense, with as
many copies of the current Fund prospectus for the Designated Portfolios as the
Company may reasonably request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or the Distributor will
provide the Company in conjunction with the Company's standard printing cycle,
at the Company's expense, as many copies of said prospectus as necessary for
distribution, at the Company's expense, to existing contractowners. The Fund or
the Distributor will provide the copies of said prospectus to the Company or to
its mailing agent. If requested by the Company in lieu thereof, the Fund or the
Distributor will provide such documentation, including a computer diskette or a
final copy of a current prospectus set in type at the Fund's or Distributor's
expense, and such other assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund prospectus is amended
more frequently) to have the Fund's prospectus and the prospectuses of other
mutual funds in which assets attributable to the Contracts may be invested
printed together in one document. If in the event the Fund issues a new
prospectus outside of the Company's standard printing cycle, then the Fund or
the Distributor will provide the Company, at the Fund's or Distributor's
expense, with as many copies of the current Fund prospectus for the Designated
Portfolios as the Company may reasonably request for distribution, at the
Company's expense, to existing and prospective contractowners and applicants.
3.2. The Fund or the Distributor will provide the Company, at the Company's
expense, with as many copies of the statement of additional information as the
Company may reasonably request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or the Distributor will
provide, at the Company's expense, as many copies of said statement of
additional information as necessary for distribution, at the Company's expense,
to any existing contractowner who requests such statement or whenever state or
federal law otherwise requires that such statement be provided. The Fund or the
Distributor will provide the copies of said statement of additional information
-6-
to the Company or to its mailing agent. If requested by the Company in lieu
thereof, the Fund or the Distributor will provide such documentation, including
a computer diskette or a final copy of a current statement of additional
information set in type at the Fund's or Distributor's expense.
3.3. The Fund or the Distributor, at the Fund's or its affiliate's expense,
will provide the Company or its mailing agent with copies of its proxy material,
if any, reports to shareholders and other communications to shareholders in such
quantity as the Company will reasonably require. The Company will distribute
this proxy material, reports and other communications to existing contractowners
and tabulate the votes.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in the Account
in accordance with instructions received from contractowners; and
(c) vote shares of the Designated Portfolios held in the Account for
which no timely instructions have been received, as well as shares it owns,
in the same proportion as shares of such Designated Portfolio for which
instructions have been received from the Company's contractowners;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contractowners. Except as
set forth above, the Company reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the extent permitted by law. The
Company will be responsible for assuring that each of its separate accounts
participating in the Fund calculates voting privileges in a manner consistent
with all legal requirements, including the Mixed and Shared Funding Exemptive
Order.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund either will provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends to comply
with Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of trustees and with whatever rules the SEC may promulgate
with respect thereto.
ARTICLE IV. Sales Material and Information
------------------------------
4.1. The Distributor will provide the Company on a timely basis with
investment performance information for each Designated Portfolio in which the
Company maintains a subaccount of the Account, including total return for the
preceding calendar month and calendar quarter, the calendar year to date, and
the prior one-year, five-year, and ten year (or life of the Fund) periods. The
Company may, based on the SEC mandated information supplied by the Distributor,
prepare communications for contractowners ("Contractowner Materials"). The
Company will provide copies of all Contractowner Materials concurrently with
their first use for the Distributor's internal recordkeeping purposes. It is
understood that neither the Distributor nor any Designated Portfolio will be
responsible for errors or omissions in, or the content of, Contractowner
Materials except to the extent that the error or omission resulted from
information provided by or on behalf of the Distributor or the Designated
Portfolio. Any printed
-7-
information that is furnished to the Company pursuant to
this Agreement other than each Designated Portfolio's prospectus or statement of
additional information (or information supplemental thereto), periodic reports
and proxy solicitation materials is the Distributor's sole responsibility and
not the responsibility of any Designated Portfolio or the Fund. The Company
agrees that the Portfolios, the shareholders of the Portfolios and the officers
and governing Board of the Fund will have no liability or responsibility to the
Company in these respects.
4.2. The Company will not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement, prospectus or statement of additional
information for Fund shares, as such registration statement, prospectus and
statement of additional information may be amended or supplemented from time to
time, or in reports or proxy statements for the Fund, or in published reports
for the Fund which are in the public domain or approved by the Fund or the
Distributor for distribution, or in sales literature or other material provided
by the Fund, Adviser or by the Distributor, except with permission of the
Distributor. Any piece of sales literature or other promotional material
intended to be used by the Company which requires the permission of the
Distributor prior to use will be furnished by Company to the Distributor, or its
designee, at least ten (10) business days prior to its use. No such material
will be used if the Distributor reasonably objects to such use within five (5)
business days after receipt of such material.
Nothing in this Section 4.2 will be construed as preventing the Company or its
employees or agents from giving advice on investment in the Fund.
4.3. The Fund, the Adviser or the Distributor will furnish, or will cause
to be furnished, to the Company or its designee, each piece of sales literature
or other promotional material in which the Company or its Account is named, at
least ten (10) business days prior to its use. No such material will be used if
the Company reasonably objects to such use within five (5) business days after
receipt of such material.
4.4. The Fund, the Adviser and the Distributor will not give any
information or make any representations or statements on behalf of the Company
or concerning the Company, each Account, or the Contracts other than the
information or representations contained in a registration statement, prospectus
or statement of additional information for the Contracts, as such registration
statement, prospectus and statement of additional information may be amended or
supplemented from time to time, or in published reports for each Account or the
Contracts which are in the public domain or approved by the Company for
distribution to contractowners, or in sales literature or other material
provided by the Company, except with permission of the Company. The Company
agrees to respond to any request for approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares, contemporaneously
with the filing of such document with the SEC, the NASD or other regulatory
authority.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to the Contracts or
each Account, contemporaneously with the filing of such document with the SEC,
the NASD or other regulatory authority.
-8-
4.7. For purposes of this Article IV, the phrase "sales literature or other
promotional material" 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, (e.g., on-line
networks such as the Internet or other electronic messages), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisements, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, registration statements, prospectuses,
statements of additional information, shareholder reports, and proxy materials
and any other material constituting sales literature or advertising under the
NASD rules, the 1933 Act or the 0000 Xxx.
4.8. The Fund and the Distributor hereby consent to the Company's use of
the names ING Mutual Funds Management Co. LLC, ING Variable Insurance Trust, the
portfolio names designated on Schedule B or other designated names as may be
used from time to time in connection with the marketing of the Contracts,
subject to the terms of Sections 4.1 and 4.2 of this Agreement. Such consent
will terminate with the termination of this Agreement.
ARTICLE V. Fees and Expenses
-----------------
5.1. The Fund, the Adviser and the Distributor will pay no fee or other
compensation to the Company under this Agreement except pursuant to Rule 12b-1
under the 1940 Act to finance distribution expenses. The Fund may make Rule
12b-1 payments to the Company or to the underwriter for the Contracts if and in
such amounts agreed to by the Fund in writing.
5.2. All expenses incident to performance by the Fund of this Agreement
will be paid by the Fund to the extent permitted by law. The Fund will bear the
expenses for the cost of registration and qualification of the Fund's shares;
preparation and filing of the Fund's prospectus, statement of additional
information and registration statement, proxy materials and reports; setting in
type and printing proxy materials and reports by it to contractowners (including
the costs of printing a Fund prospectus that constitutes an annual report); the
preparation of all statements and notices required by any federal or state law;
all taxes on the issuance or transfer of the Fund's shares; any expenses
permitted to be paid or assumed by the Fund pursuant to a plan, if any, under
Rule 12b-1 under the 1940 Act; and all other expenses set forth in Article III
of this Agreement.
ARTICLE VI. Diversification and Qualification
---------------------------------
6.1. The Adviser will ensure that the Fund will at all times invest money
from the Contracts in such a manner as to ensure that the Contracts will be
treated as variable annuity contracts under the Internal Revenue Code and the
regulations issued thereunder. Without limiting the scope of the foregoing, the
Fund will comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulation. In the event of a breach of this Article VI by the Fund, it will
take all reasonable steps: (a) to notify the Company of such breach; and (b) to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Treasury Regulation 1.817-5.
6.2. The Fund represents that it is or will be qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and that it
will make every effort to maintain such
-9-
qualification (under Subchapter M or any
successor or similar provisions) and that it will notify the Company immediately
upon having a reasonable basis for believing that it has ceased to so qualify or
that it might not so qualify in the future.
6.3. The Company represents that the Contracts are currently, and at the
time of issuance shall be, treated as life insurance or annuity insurance
contracts, under applicable provisions of the Internal Revenue Code, and that it
will make every effort to maintain such treatment, and that it will notify the
Fund and the Distributor immediately upon having a reasonable basis for
believing the Contracts have ceased to be so treated or that they might not be
so treated in the future. The Company agrees that any prospectus offering a
contract that is a "modified endowment contract" as that term is defined in
Section 7702A of the Internal Revenue Code (or any successor or similar
provision), shall identify such contract as a modified endowment contract.
ARTICLE VII. Potential Conflicts
-------------------
7.1. The Fund Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contractowners of all
separate accounts investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance contractowners; or (f)
a decision by an insurer to disregard the voting instructions of contractowners.
The Fund Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of which
it is aware to the Fund Board. The Company will assist the Fund Board in
carrying out its responsibilities under the Mixed and Shared Funding Exemptive
Order, by providing the Fund Board with all information reasonably necessary for
the Fund Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Company to inform the Fund Board whenever contractowner
voting instructions are disregarded.
7.3. If it is determined by a majority of the Fund Board, or a majority of
its disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested Fund Board members), take whatever steps are necessary to remedy
or eliminate the irreconcilable material conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected contractowners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contractowners, life insurance
contractowners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to the
affected contractowners the option of making such a change; and (b) establishing
a new registered management investment company or managed separate account.
-10-
7.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard contractowner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund and terminate this Agreement with respect to each 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 members of the Fund Board. Any such withdrawal and
termination must take place within six (6) months after the Fund gives written
notice that this provision is being implemented, and until the end of that six
month period the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Fund Board informs the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested members of the Fund Board. Until the end of the foregoing six
month period, the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Section 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Fund Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contract if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Fund Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Fund Board informs
the Company in writing of the foregoing determination; provided, however, that
such withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested members of the Fund Board.
7.7. If and to the extent the Mixed and Shared Funding Exemptive Order or
any amendment thereto contains terms and conditions different from Sections 3.4,
3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or
the Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with the Mixed and Shared Funding Exemptive Order,
and Sections 3.4, 3.5, 3.6, 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 the Mixed and Shared Funding
Exemptive Order or any amendment thereto. 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 Fund
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
3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in
effect only to the
-11-
extent that terms and conditions substantially identical to
such Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By the Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, the Distributor, and each person, if any, who controls or is
associated with the Fund, the Adviser or the Distributor within the meaning
of such terms under the federal securities laws and any director, trustee,
officer, partner, employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation
(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:
(1) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Contracts or contained in the Contracts or sales
literature or other promotional material 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
material fact required to be stated or necessary to make such
statements not misleading in light of the circumstances in which they
were made; provided that this agreement to indemnify will 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
written information furnished to the Company by the Fund, the Adviser
or the Distributor for use in the registration statement, prospectus
or statement of additional information 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 Fund
shares; or
(2) arise out of or as a result of statements or representations
by or on behalf of the Company or wrongful conduct of the Company or
persons under its control, with respect to the sale or distribution of
the Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Fund registration statement,
prospectus, statement of additional information or sales literature or
other promotional material of the Fund (or amendment or supplement) or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make such statements not
misleading in light of the circumstances in which they were made, if
such a statement or omission was made in reliance upon and in
conformity with information furnished to the Fund by or on behalf of
the Company or persons under its control; or
(4) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement; or
-12-
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or
result from any other material breach by the Company of this
Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 8.1(a)
to the extent such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, or gross negligence in the performance
of such party's duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this Agreement by the
party seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or sale
of the Fund shares or the Contracts or the operation of the Fund.
8.2. Indemnification By the Adviser, the Fund and the Distributor
------------------------------------------------------------
(a) The Adviser, the Fund and the Distributor, in each case solely to
the extent relating to such party's responsibilities hereunder, agree to
indemnify and hold harmless the Company and each person, if any, who
controls or is associated with the Company within the meaning of such terms
under the federal securities laws and any director, trustee, officer,
partner, employee or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses,
claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Adviser) or litigation
(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:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Fund or sales literature or other promotional
material of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated or necessary to make such statements not misleading in light of
the circumstances in which they were made; provided that this
agreement to indemnify will 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 Adviser, the Distributor or the Fund by or on behalf of the
Company for use in the registration statement, prospectus or statement
of additional information for the Fund or in sales literature of the
Fund (or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
or wrongful conduct of the Adviser, the Fund or the Distributor or
persons under the control of the Adviser, the Fund or the Distributor
respectively, with respect to the sale of the Fund shares; or
-13-
(3) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material covering the Contracts (or any amendment or
supplement thereto), or the omission or alleged omission to state
therein a material fact required to be stated or necessary to make
such statement or statements not misleading in light of the
circumstances in which they were made, if such statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company by the Adviser, the Fund or the Distributor
or persons under the control of the Adviser, the Fund or the
Distributor; or
(4) arise as a result of any failure by the Fund, the Adviser or
the Distributor to provide the services and furnish the materials
under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the
diversification requirements and procedures related thereto specified
in Article VI of this Agreement); or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the Fund or the
Distributor in this Agreement, or arise out of or result from any
other material breach of this Agreement by the Adviser, the Fund or
the Distributor;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification will be in addition to any liability that the Fund, Adviser
or the Distributor otherwise may have.
(b) No party will be entitled to indemnification under Section 8.2(a)
to the extent such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, or gross negligence in the performance
of such party's duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this Agreement by the
party seeking indemnification.
(c) The Indemnified Parties will promptly notify the Adviser, the Fund
and the Distributor of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in connection
with the issuance or sale of the Contracts or the operation of the account.
8.3. Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.3) will not be liable
under the indemnification provisions of this Article VIII with respect to any
claim made against a party entitled to indemnification under this Article VIII
("Indemnified Party" for the purpose of this Section 8.3) unless such
Indemnified Party will have notified the Indemnifying Party in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim will have been served upon such
Indemnified Party (or after such party will have received notice of such service
on any designated agent), but failure to notify the Indemnifying Party of any
such claim will not relieve the Indemnifying Party from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of the indemnification provision of this Article VIII, except to
the extent that the failure to notify results in the failure of actual notice to
the Indemnifying Party and such Indemnifying Party is damaged solely as a result
of failure to give such notice. In case any such action is brought against the
Indemnified Party, the
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Indemnifying Party will be entitled to participate, at
its own expense, in the defense thereof. The Indemnifying Party also will be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Indemnifying Party to the Indemnified
Party of the Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any additional counsel
retained by it, and the Indemnifying Party will not be liable to such party
under this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other than
reasonable costs of investigation, unless: (a) the Indemnifying Party and the
Indemnified Party will have mutually agreed to the retention of such counsel; or
(b) the named parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Indemnifying Party will not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there is a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or judgment. A
successor by law of the parties to this Agreement will be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII will survive any
termination of this Agreement.
8.4 DISTRIBUTOR LIMITATION ON LIABILITY. Notwithstanding the foregoing, the
Distributor shall not be liable to any party to this Agreement for lost profits,
punitive, special, incidental, indirect or consequential damages.
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 Delaware.
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, any Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
If, in the future, the Mixed and Shared Funding Exemptive Order should no longer
be necessary under applicable law, then Article VII shall no longer apply.
ARTICLE X. Termination
-----------
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to
some or all of the Designated Portfolios, upon sixty (60) days' advance
written notice to the other parties or, if later, upon receipt of any
required exemptive relief or orders from the SEC, unless otherwise agreed
in a separate written agreement among the parties; or
(b) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any Designated
Portfolio if shares of the Designated Portfolio are not reasonably
available to meet the requirements of the Contracts as determined in good
faith by the Company; or
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(c) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any Designated
Portfolio in the event any of the Designated Portfolio's shares are not
registered, issued or sold in accordance with applicable state and/or
Federal law or such law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's written
notice by the other parties, upon institution of formal proceedings against
the Company by the NASD, the SEC, the insurance commission of any state or
any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration of
the Contracts, the operation of the Account, or the purchase of the Fund
shares, provided that the Fund determines in its sole judgment, exercised
in good faith, that any such proceeding would have a material adverse
effect on the Company's ability to perform its obligations under this
Agreement; or
(e) at the option of the Company, upon receipt of the Company's
written notice by the other parties, upon institution of formal proceedings
against the Fund, Adviser or the Distributor by the NASD, the SEC, or any
state securities or insurance department or any other regulatory body,
provided that the Company determines in its sole judgment, exercised in
good faith, that any such proceeding would have a material adverse effect
on the Fund's or the Distributor's ability to perform its obligations under
this Agreement; or
(f) at the option of the Company, upon receipt of the Company's
written notice by the other parties, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal Revenue
Code, or under any successor or similar provision, or if the Company
reasonably and in good faith believes that the Fund may fail to so qualify;
or
(g) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any Designated
Portfolio if the Fund fails to meet the diversification requirements
specified in Article VI hereof or if the Company reasonably and in good
faith believes the Fund may fail to meet such requirements; or
(h) 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; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Fund, the Adviser or
the Distributor has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is
the subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Company,
such termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(j) at the option of the Fund or the Distributor, if the Fund or the
Distributor respectively, determines in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of the
Fund or the Adviser, such termination to be effective sixty (60) days'
after receipt by the other parties of written notice of the election to
terminate; or
-16-
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the contractowners having
an interest in the Account (or any subaccount) to substitute the shares of
another investment company for the corresponding Designated Portfolio
shares of the Fund in accordance with the terms of the Contracts for which
those Designated Portfolio shares had been selected to serve as the
underlying investment media. The Company will give sixty (60) days' prior
written notice to the Fund of the date of any proposed vote or other action
taken to replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the disinterested Fund Board
members, that an irreconcilable material conflict exists among the
interests of: (1) all contractowners of variable insurance products of all
separate accounts; or (2) the interests of the Participating Insurance
Companies investing in the Fund as set forth in Article VII of this
Agreement; or
(m) at the option of the Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or state law.
Termination will be effective immediately upon such occurrence without
notice.
10.2. NOTICE REQUIREMENT. No termination of this Agreement will be
effective unless and until the party terminating this Agreement gives prior
written notice to all other parties of its intent to terminate, which notice
will set forth the basis for the termination.
10.3. EFFECT OF TERMINATION. Notwithstanding any termination of this
Agreement, the Fund and the Distributor will, at the option of the Company,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement ( hereinafter referred to as "Existing
Contracts.") . Specifically, without limitation, the owners of the Existing
Contracts will be permitted to reallocate investments in the Portfolios (as in
effect on such date), redeem investments in the Portfolios and/or invest in the
Portfolios upon the making of additional purchase payments under the Existing
Contracts.
10.4. SURVIVING PROVISIONS. Notwithstanding any termination of this
Agreement, each party's obligations under Article VIII to indemnify other
parties will survive and not be affected by any termination of this Agreement.
In addition, each party's obligations under Section 12.7 will survive and not be
affected by any termination of this Agreement. Finally, with respect to Existing
Contracts, all provisions of this Agreement also will survive and not be
affected by any termination of this Agreement.
ARTICLE XI. Notices
-------
11.1. 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 Fund: ING Variable Insurance Trust
c/o Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to the Company: Golden American Life Insurance Company
c/o Xxxxx Xxxxxxx
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Executive Vice President and General Counsel
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to Adviser: ING Mutual Funds Management Co. LLC
c/o Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to Distributor: ING Funds Distributor, Inc
c/o Xxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither the
directors, trustees, officers, partners, employees, agents or shareholders
assume any personal liability for obligations entered into on behalf of the
Fund. No Portfolio or series of the Fund will be liable for the obligations or
liabilities of any other Portfolio or series.
12.2. The Fund, the Adviser and the Distributor acknowledge that the
identities of the customers of the Company or any of its affiliates, except for
customers of the Adviser or its affiliates (collectively the "Company Protected
Parties" for purposes of this Section 12.2), information maintained regarding
those customers, and all computer programs and procedures or other information
developed or used by the Company Protected Parties or any of their employees or
agents in connection with the Company's performance of its duties under this
Agreement are the valuable property of the Company Protected Parties. The Fund,
the Adviser and the Distributor agree that if they come into possession of any
list or compilation of the identities of or other information about the Company
Protected Parties' customers, or any other information or property of the
Company Protected Parties, other than such information as is publicly available
or as may be independently developed or compiled by the Fund, the Adviser or the
Distributor from information supplied to them by the Company Protected Parties'
customers who also maintain accounts directly with the Fund, the Adviser or the
Distributor, the Fund, the Adviser and the Distributor will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with the
Company's prior written consent; or (b) as required by law or judicial process.
The Company acknowledges that the identities of the customers of the Fund, the
Adviser, the Distributor or any of their affiliates (collectively the "Adviser
Protected Parties" for purposes of this Section 12.2), information maintained
regarding those customers, and all computer programs and procedures or other
information developed or used by the Adviser Protected Parties or any of their
employees or agents in connection with the Fund's, the Adviser's or the
Distributor's performance of their respective duties under this Agreement are
the valuable property of the Adviser Protected Parties. The Company agrees that
if it comes into possession of any list or compilation of the identities of or
other information about the Adviser Protected Parties' customers, or any other
information or property of the Adviser Protected Parties, other than such
information as is publicly available or as may be independently developed or
compiled by the Company from information supplied to them by the Adviser
Protected Parties' customers who also maintain accounts directly with the
Company, the Company will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or other
property except: (a) with the Fund's, the Adviser's or the Distributor's prior
written
-18-
consent; or (b) as required by law or judicial process. Each party
acknowledges that any breach of the agreements in this Section 12.2 would result
in immediate and irreparable harm to the other parties for which there would be
no adequate remedy at law and agree that in the event of such a breach, the
other parties will be entitled to equitable relief by way of temporary and
permanent injunctions, as well as such other relief as any court of competent
jurisdiction deems appropriate.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the same
instrument.
12.5. If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement will
not be affected thereby.
12.6. This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
12.7. Each party to this Agreement will maintain all records required by
law, including records detailing the services it provides. Such records will be
preserved, maintained and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder. Each party to this
Agreement will cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, the NASD and state insurance
regulators) and will permit each other and 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. Upon request by the
Fund or the Distributor, the Company agrees to promptly make copies or, if
required, originals of all records pertaining to the performance of services
under this Agreement available to the Fund or the Distributor, as the case may
be. The Fund agrees that the Company will have the right to inspect, audit and
copy all records pertaining to the performance of services under this Agreement
pursuant to the requirements of any state insurance department. Each party also
agrees to promptly notify the other parties if it experiences any difficulty in
maintaining the records in an accurate and complete manner. This provision will
survive termination of this Agreement.
12.8. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms.
12.9. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to the Contracts,
the Accounts or the Designated Portfolios of the Fund or other applicable terms
of this Agreement.
12.10. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights.
12.11. The names "ING Variable Insurance Trust" and "Trustees of ING
Variable Insurance Trust" refer respectively to the trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under a Declaration of Trust dated July 15, 1999 which is hereby referred
to and a copy of which is at the principal office of the Fund. The obligations
of "ING Variable
-19-
Insurance Trust" entered into in the name or on behalf thereof
by any of the Trustees, representatives or agents are made not individually, but
in such capacities, and are not binding upon any of the Trustees, Shareholders,
or representatives of the Fund personally, but bind only the Trust Property, and
all persons dealing with any class of Shares of the Fund must look solely to the
Trust Property belonging to such class for the enforcement of any claims against
the Fund.
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 specified below:
GOLDEN AMERICAN LIFE
INSURANCE COMPANY:
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
---------------------------------
Date: April 25, 2000
----------------------------------
ING VARIABLE INSURANCE TRUST:
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
---------------------------------
Date: April 25, 2000
----------------------------------
ING MUTUAL FUNDS MANAGEMENT CO. LLC :
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President and
General Counsel
---------------------------------
Date: April 25, 2000
----------------------------------
ING FUNDS DISTRIBUTOR, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Chief Financial Officer and
Treasurer
---------------------------------
Date: April 25, 2000
----------------------------------
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SCHEDULE A
GOLDEN AMERICAN LIFE INSURANCE COMPANY
CONTRACTS AND SEPARATE ACCOUNT(S)
CONTRACT(S):
Deferred Combination Variable and Fixed Annuity Contracts
SEPARATE ACCOUNT(S):
Separate Account B of Golden American Life Insurance Company
SCHEDULE B
ING VARIABLE INSURANCE TRUST
DESIGNATED PORTFOLIOS
PORTFOLIOS:
ING International Equity Fund
ING Global Brand Names Fund
Schedule Date: April 28, 2000
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