SELLING AND SERVICES AGREEMENT AND FUND PARTICIPATION AGREEMENT
Exhibit 99-B.8.144 |
SELLING AND SERVICES AGREEMENT |
AND |
FUND PARTICIPATION AGREEMENT |
THIS AGREEMENT, made and entered into as of this 11th day of March, 2003 by |
and among ING Life Insurance and Annuity Company (“ING Life”), ReliaStar Life |
Insurance Company ("ReliaStar"), ReliaStar Life Insurance Company of New York |
("ReliaStar New York") (collectively "Insurer(s)"), ING Financial Advisers, LLC (“ING |
Financial”) (together with Insurers referred to collectively as “ING”), and PIMCO |
Advisors Distributors LLC (“Distributor”), the Distributor for the registered open |
end management investment companies whose shares are or may be underwritten by |
Distributor and are listed on Exhibit II hereto (each a “Fund” or collectively the “Funds”). |
WHEREAS, Distributor acts as principal underwriter for the Funds; and |
WHEREAS, Insurers are insurance companies that issue annuity contracts to, |
and/or provide various recordkeeping and other administrative services to, certain plans |
under Sections 401, 403(b), 457 or 408 of the Internal Revenue Code of 1986, as |
amended ("Code"), certain nonqualified deferred compensation arrangements, and |
custodial accounts under Section 403(b)(7) or 408 of the Code (collectively, "Plans"); and |
WHEREAS, such Plans may invest in the Funds directly, or alternatively, certain |
of such Plans may invest in the Funds indirectly through annuity contracts issued by |
Insurers (the “Contracts”); and |
WHEREAS, ING Life has established Variable Annuity Accounts B, C, D and F |
and may establish such other accounts as may be set forth in Schedule A attached hereto |
(the “Separate Accounts”) to serve as an investment vehicle for the Contracts; and |
WHEREAS, ReliaStar has established Separate Account One and may establish |
such other accounts as may be set forth in Schedule A attached hereto (the “Separate |
Accounts”) to serve as an investment vehicle for the Contracts; and |
WHEREAS, ReliaStar New York has established a separate account and may |
establish such other accounts as may be set forth in Schedule A attached hereto (the |
“Separate Accounts”) to serve as an investment vehicle for the Contracts; and |
WHEREAS, ING Life, ReliaStar and ReliaStar New York will provide various |
administrative and shareholder services in connection with the investment by the Plans in |
the Funds or in the Contracts; and |
WHEREAS, ING Financial will distribute to Plans shares of the Funds or units of |
the Separate Accounts that may in turn invest in the Funds; |
NOW, THEREFORE, it is agreed as follows: | ||
1. | Investment of Plan Assets. | |
(a) With respect to Plans that invest in the Funds directly, ING Financial | ||
represents that it is authorized under the Plans to implement the investment of Plan assets | ||
in the name of an appropriately designated nominee of each Plan (“Nominee”) in shares | ||
of investment companies or other investment vehicles specified by a sponsor, an | ||
investment adviser, an administrative committee, or other fiduciary as designated by a | ||
Plan (“Plan Representative”) upon the direction of a Plan participant or beneficiary | ||
(“Participant”). The parties acknowledge and agree that selections of particular | ||
investment companies or other investment vehicles are made by Plan representatives or | ||
Participants, who may change their respective selections from time to time in accordance | ||
with the terms of the Plan. | ||
(b) With respect to Plans that invest in the Funds indirectly through the | ||
Contracts, ING Life represents that each of the Separate Accounts is a separate account | ||
under Connecticut Insurance law and that it has registered or will register each of the | ||
Separate Accounts (except for such Accounts for which no such registration is required) | ||
as a unit investment trust under the Investment Company Act of 1940 (the “1940 Act”), | ||
to serve as an investment vehicle for the Contracts. Each Contract provides for the | ||
allocation of net amounts received by ING Life to a Separate Account for investment in | ||
the shares of one or more specified open-end management investment companies | ||
available through that Separate Account as underlying investment media. Selection of a | ||
particular investment management company and changes therein from time to time are | ||
made by the Contract Owner or Participant, as applicable under a particular Contract. | ||
(c) With respect to Plans that invest in the Funds indirectly through the | ||
Contracts, ReliaStar represents that each of the Separate Accounts is a separate account | ||
under Minnesota Insurance law and that it has registered or will register each of the | ||
Separate Accounts (except for such Accounts for which no such registration is required) | ||
as a unit investment trust under the Investment Company Act of 1940 (the “1940 Act”), | ||
to serve as an investment vehicle for the Contracts. Each Contract provides for the | ||
allocation of net amounts received by ReliaStar to a Separate Account for investment in | ||
the shares of one or more specified open-end management investment companies | ||
available through that Separate Account as underlying investment media. Selection of a | ||
particular investment management company and changes therein from time to time are | ||
made by the Contract Owner or Participant, as applicable under a particular Contract. |
(d) With respect to Plans that invest in the Funds indirectly through the | ||
Contracts, ReliaStar New York represents that each of the Separate Accounts is a separate | ||
account under New York Insurance law and that it has registered or will register each of | ||
the Separate Accounts (except for such Accounts for which no such registration is | ||
required) as a unit investment trust under the Investment Company Act of 1940 (the | ||
“1940 Act”), to serve as an investment vehicle for the Contracts. Each Contract provides | ||
for the allocation of net amounts received by ReliaStar New York to a Separate Account | ||
for investment in the shares of one or more specified open-end management investment | ||
companies available through that Separate Account as underlying investment media. | ||
Selection of a particular investment management company and changes therein from time | ||
to time are made by the Contract Owner or Participant, as applicable under a particular | ||
Contract. | ||
2. | Omnibus Account. | |
The parties agree that, with respect to each Fund, a single omnibus account held in | ||
the name of the Nominee shall be maintained for those Plan assets directed for investment | ||
directly in the Fund, and a single omnibus account held in the name of each Insurer shall | ||
be maintained for those Plan assets directed for investment in the Fund through the | ||
Contracts (collectively, the “Accounts.”) Insurers as issuers of the Contracts or as service | ||
agents for the Plans, shall facilitate purchase and sale transactions with respect to the | ||
Accounts in accordance with the Agreement. | ||
3. | Pricing Information, Orders, Settlement. | |
(a) Distributor will make Class A shares ("shares") available to be purchased by | ||
the Nominee or by Insurers, as applicable, on behalf of the Accounts, at the net asset | ||
value applicable to each order; provided, however, that the Plans or the Separate | ||
Accounts meet the criteria for purchasing shares of the Funds at net asset value as | ||
described in the Funds’ prospectuses. Fund shares shall be purchased and redeemed on a | ||
net basis for such Plans or such Separate Accounts in such quantity and at such time | ||
determined by ING or the Nominee to correspond with investment instructions received | ||
by ING from Contract owners, Plan Representatives or Participants. |
(b) Distributor agrees to furnish or cause to be furnished to ING Financial for |
each Fund: (i) confirmed net asset value information as of the close of trading (currently |
4:00 p.m., East Coast time) on the New York Stock Exchange (“Close of Trading”) on |
each business day that the New York Stock Exchange is open for business (“Business |
Day”) or at such other time as the net asset value of a Fund is calculated as disclosed in |
the relevant then current prospectus(es) in a format that includes the Fund’s name and the |
change from the last calculated net asset value, (ii) dividend and capital gains information |
as it arises, and (iii) in the case of a fixed income fund, the daily accrual or the |
distribution rate factor. The Distributor or its designee shall use commercially reasonable |
efforts to provide or cause to be provided to ING Financial such information by 6:30 p.m. |
East Coast time on such Business Day, but will in no event provide such information later |
than 7:00 p.m. East Coast time. |
(c) ING Financial, as agent for the Funds for the sole purposes expressed herein |
shall receive from Contract owners, Plan Representatives or Participants for acceptance |
as of the Close of Trading on each Business Day: (i) orders for the purchase of shares of |
the Funds, exchange orders, and redemption requests and redemption directions with |
respect to shares of the Funds held by the Nominee or by Insurers on behalf of its |
Separate Accounts (“Instructions”), (ii) transmit to Distributor such Instructions no later |
than 9:00 a.m., East Coast time on the next following Business Day, and (iii) upon |
acceptance of any such Instructions, communicate such acceptance to the Contract |
owners, Plan Representatives or Plan Participants, as appropriate (“Confirmation”). The |
Business Day on which such Instructions are received in proper form by ING Financial |
and time stamped by the Close of Trading will be the date as of which Fund shares shall |
be deemed purchased, exchanged, or redeemed as a result of such Instructions. |
Instructions received in proper form by ING Financial and time stamped after the Close |
of Trading on any given Business Day shall be treated as if received on the next following |
Business Day. ING Financial agrees that all Instructions received by ING Financial, |
which will be transmitted to Distributor for processing as of a particular Business Day, |
will have been received and time stamped prior to the Close of Trading on that previous |
Business Day. |
(d) ING Financial will wire payment, or arrange for payment to be wired, for |
such purchase orders, in immediately available funds, to a Fund custodial account or |
accounts designated by Distributor, as soon as possible and shall use commercially |
reasonable efforts to wire payment, or arrange for payment to be wired by 3:00 p.m., East |
Coast time on the same Business Day on which such purchase orders are made by ING in |
conformance with Section 3(c) but in any event no later than 4:00 p.m. East Coast time. |
(e) Distributor or its designees will wire payment, or arrange for payment to be |
wired, for redemption orders, in immediately available funds, to an account or accounts |
designated by ING Financial, as soon as possible and shall use commercially reasonable |
efforts to wire payment, or arrange for payment to be wired by 3:00 p.m., East Coast time |
on the same Business Day on which such redemption orders are received by the |
Distributor in conformance with Section 3(c) but in any event no later than 4:00 p.m. East |
Coast time. |
(f) In lieu of applicable provisions set forth in paragraphs 3(a) through 3(e) |
above, the parties may agree to provide pricing information, execute orders and wire |
payments for purchases and redemptions through National Securities Clearing |
Corporation’s Fund/SERV System, in which case such activities will be governed by the |
provisions set forth in Exhibit I to this Agreement. |
(g) Upon Distributor’s request, ING shall provide copies of historical records |
relating to transactions between the Funds and the Contract owners, Plan Representatives |
or Participants investing in such Funds, written communications regarding the Funds to |
or from such persons, and other materials, in each case, as may reasonably be requested to |
enable Distributor or any other designated entity, including without limitation, auditors, |
investment advisers, or transfer agents of the Funds to monitor and review the services |
being provided under this Agreement, or to comply with any request of a governmental |
body or self-regulatory organization or a shareholder. ING also agrees that ING will |
permit Distributor or the Funds, or any duly designated representative to have reasonable |
access to ING’s personnel and records in order to facilitate the monitoring of the quality |
of the services being provided under this Agreement. |
(h) ING Financial shall assume responsibility as herein described for any loss to |
Distributor or to a Fund caused by a cancellation or correction made to an Instruction by a |
Contract owner, Plan Representative or Participant subsequent to the date as of which |
such Instruction has been received by ING Financial and originally relayed to Distributor, |
and ING Financial will immediately pay such loss to Distributor or such Fund upon ING |
Financial’s receipt of written notification, with supporting data. |
(i) Distributor shall indemnify and hold ING harmless, from the effective date of | ||
this Agreement, against any amount ING is required to pay to Contract owners, Plans, | ||
Plan Representatives or Participants due to: (i) an incorrect calculation of a Fund’s daily | ||
net asset value, dividend rate, or capital gains distribution rate or (ii) incorrect or late | ||
reporting of the daily net asset value, dividend rate, or capital gain distribution rate of a | ||
Fund, upon written notification by ING, with supporting data, to Distributor. In addition, | ||
the Fund or the Distributor shall be liable to ING for systems and out of pocket costs | ||
incurred by ING in making a Contract owner’s, a Plan’s or a Participant's account whole, | ||
if such costs or expenses are a result of the Fund's failure to provide timely or correct net | ||
asset values, dividend and capital gains or financial information and if such information is | ||
not corrected by 4:00 p.m. East Coast time of the next business day after releasing such | ||
incorrect information provided the incorrect NAV as well as the correct NAV for each | ||
day that the error occurred is provided and further provided that ING and Distributor | ||
agree in advance as to the method/manner of correcting such error. In no case shall | ||
Distributor be liable for any amount needed to correct a particular account unless | ||
adjustment is required for the amount involved pursuant to the Fund's then current error | ||
correction procedure. If a mistake is caused in supplying such information or | ||
confirmations, which results in a reconciliation with incorrect information, the amount | ||
required to make a Contract owner’s or a Plan’s or a Participant's account whole shall be | ||
borne by the party providing the incorrect information, regardless of when the error is | ||
corrected. | ||
(j) Each party shall notify the other of any errors or omissions in any | ||
information, including a net asset value and distribution information set forth above, and | ||
interruptions in or delay or unavailability of, the means of transmittal of any such | ||
information as promptly as possible. ING Financial and Distributor agree to maintain | ||
reasonable errors and omissions insurance coverage commensurate with each party’s | ||
respective responsibilities under this Agreement. | ||
4. | Servicing Fees. |
The provision of shareholder and administrative services to Contract owners or to | ||
the Plans shall be the responsibility of ING Financial, Insurers or the Nominee and shall | ||
not be the responsibility of Distributor. The Nominee, or Insurers on behalf of their | ||
Separate Accounts, will be recognized as the sole shareholders of Fund shares purchased | ||
under this Agreement. It is further recognized that there will be a substantial savings in | ||
administrative expense and recordkeeping expenses by virtue of having one shareholder | ||
rather than multiple shareholders. In consideration of the administrative savings resulting | ||
from such arrangement, Distributor agrees to pay to the applicable Insurer a servicing fee | ||
based on the annual rate of ____% (____% quarterly) of the average net assets invested | ||
in the Funds through the Contracts or through Insurer’s arrangements with Plans in each | ||
calendar quarter. Distributor will make such payments to Insurer within thirty (30) days | ||
after the end of each calendar quarter. Each payment will be accompanied by a statement | ||
showing the calculation of the fee payable to Insurer for the quarter and such other | ||
supporting data as may be reasonably requested by Insurer. If required by a Plan or by | ||
applicable law, Insurer shall have the right to allocate to a Plan or to Participant accounts | ||
in a Plan all or a portion of such servicing fees, or to use servicing fees it collects from | ||
Distributor to offset other fees payable by the Plan to Insurer. | ||
5. | 12b-1 Fees. | |
To compensate ING Financial for its distribution of Fund Shares, Distributor shall | ||
make quarterly payments to ING Financial based on the annual rate of ____% (_____% | ||
quarterly) of the average net assets invested in the Funds through the Contracts or through | ||
Insurer’s arrangements with Plans in each calendar quarter. Distributor will make such | ||
payments to ING Financial within thirty (30) days after the end of each calendar quarter. | ||
Upon request, payment will be accompanied by a statement showing the calculation of | ||
the fee payable to ING Financial for the quarter and such other supporting data as may be | ||
reasonably requested by ING Financial. If required by a Plan or by applicable law, ING | ||
Financial shall have the right to allocate to a Plan or to Participant accounts in a Plan all | ||
or a portion of such 12b-1 fees, or to use 12b-1 fees it collects from Distributor to offset | ||
other fees payable by the Plan to ING Financial. Payments pursuant to this Section shall | ||
only be made by Distributor after receipt thereof by Distributor from the applicable Trust | ||
pursuant to its 12b-1 Plan. | ||
6. | Expenses. |
Distributor shall make available for reimbursement certain out-of-pocket expenses | ||
Insurers incur in connection with providing shareholder services to Contract owners or | ||
the Plans. These expenses include actual postage paid by Insurers in connection with | ||
mailing updated prospectuses, supplements and financial reports to Contract owners or | ||
Plan Representatives or Participants for which Insurers provide shareholder services | ||
hereunder, and all costs incurred by Insurers associated with proxies for the Fund, | ||
including proxy preparation, group authorization letters, programming for tabulation and | ||
necessary materials (including postage). Except as otherwise agreed in writing, ING shall | ||
bear all other expenses incidental to the performance of the services described herein. | ||
Distributor shall, however, provide ING, or at ING’s request, the Plan, with such | ||
sufficient copies of relevant prospectuses for all Participants making an initial Fund | ||
purchase as well as relevant prospectuses, prospectus supplements and periodic reports to | ||
shareholders, and other material as shall be reasonably requested by ING to disseminate | ||
to Plan participants who purchase shares of the Funds. | ||
7. | Termination. | |
This Agreement shall terminate as to the maintenance of the Account: | ||
(a) At the option of either the Insurers, ING Financial or Distributor upon 135 | ||
days advance written notice to the other parties; | ||
(b) At the option of the Insurers or ING Financial, if shares of the Funds are not | ||
available for any reason to meet the investment requirements of the Contracts or the | ||
Plans; provided, however, that prompt advance notice of election to terminate shall be | ||
furnished by the terminating entity; | ||
(c) At the option of either ING Financial or Distributor, upon institution of | ||
formal disciplinary or investigative proceedings against ING Financial, Distributor or the | ||
Funds by the National Association of Securities Dealers, Inc. (“NASD”), SEC, or any | ||
other regulatory body; | ||
(d) At the option of Distributor, if Distributor shall reasonably determine in good | ||
faith that shares of the Funds are not being offered in conformity with the terms of this | ||
Agreement; | ||
(e) At the option of ING, upon termination of the management agreement | ||
between the Fund and its investment adviser; written notice of such termination shall be | ||
promptly furnished to ING; | ||
(f) Upon the determination of Insurers to substitute for the Fund’s shares the | ||
shares of another investment company in accordance with the terms of the applicable | ||
Contracts. Insurers will give 60 days’ written notice to the Fund and the Distributor of | ||
any decision to replace the Fund’s shares; |
(g) Upon assignment of this Agreement by any party, unless made with the | ||
written consent of all other parties hereto; provided, however, that ING Financial and | ||
Insurers may assign, without consent of Distributor, their respective duties and | ||
responsibilities under this Agreement to any of their affiliates, and provided, further, that | ||
ING Financial or Insurers may enter into subcontracts with other dealers for the | ||
solicitation of sales of shares of the Funds without the consent of Distributor provided | ||
that ING remains fully responsible to Distributor under the terms of this Agreement to the | ||
same extent as if such delegation had not taken place; or | ||
(h) If the Fund’s shares are not registered, issued or sold in conformance with | ||
federal law or such law precludes the use of Fund shares as an investment vehicle for the | ||
Contracts or the Plans; provided, however, that prompt notice shall be given by any party | ||
should such situation occur. | ||
8. | Continuation of Agreement. | |
Termination as the result of any cause listed in Section 7 hereof shall not affect | ||
the Funds’ respective obligations to continue to maintain the Account as an investment | ||
option for Contracts then in force for which its shares serve or may serve as the | ||
underlying medium, or for Plans electing to invest in the Funds prior to the termination of | ||
this Agreement. However, nothing in this Agreement shall prevent the merger of any | ||
Fund into another affiliated or unaffiliated fund, the liquidation of any Fund or the | ||
cessation of sales of shares by any Fund. In the event of the cessation of the sale of shares | ||
of any Fund, the Contracts shall be treated in the same manner that all other shareholders | ||
of such Fund are treated insofar as purchases of additional shares and Plan Participants in | ||
any Plan that owned shares (directly or through the Contracts) for any Plan Participant | ||
will be allowed to purchase shares for their plan accounts for as long as (i) the Plan | ||
continues to own some shares and (ii) the Fund continues to sell shares. | ||
9. | Advertising and Related Materials. | |
(a) Advertising and literature with respect to the Funds prepared by ING | ||
Financial or the Nominee or its agents for use in marketing shares of the Funds to | ||
Contract owners or Plans (except any material that simply lists the Funds’ names) shall be | ||
submitted to Distributor for review and approval before such material is used with the | ||
general public or any Contract owner, Plan, Plan Representative, or Participant. | ||
Distributor shall advise the submitting party in writing within five (5) Business Days of | ||
receipt of such materials of its approval or disapproval of such materials. | ||
(b) Distributor will provide to ING at least one complete copy of all | ||
prospectuses, statements of additional information, annual and semiannual reports and | ||
proxy statements, other related documents, and all amendments or supplements to any of | ||
the above documents that relate to the Funds promptly after the filing of such document | ||
with the SEC or other regulatory authorities. |
(c) Distributor will provide via Excel spreadsheet diskette format or in electronic | ||
transmission to ING at least quarterly portfolio information necessary to update Fund | ||
profiles with twelve (12) Business Days following the end of each quarter. | ||
10. | Proxy Voting. | |
ING or the Nominee will distribute to Contract owners, Plan Representatives or | ||
Participants all proxy materials furnished by Distributor or its designees for the Funds. | ||
ING and the Nominee shall not oppose or interfere with the solicitation of proxies for | ||
Fund shares held for such beneficial owners. | ||
11. | Indemnification. | |
(a) ING agrees to indemnify and hold harmless the Funds, Distributor and each | ||
of their directors, officers, employees, agents and each person, if any, who controls the | ||
Funds or their investment adviser within the meaning of the Securities Act of 1933 | ||
(“1933 Act”) against any losses, claims, damages or liabilities to which the Funds, | ||
Distributor or any such director, officer, employee, agent, or controlling person may | ||
become subject, insofar as such losses, claims, damages, or liabilities (or actions in | ||
respect thereof) (i) arise out of, or are based upon, the provision of administrative services | ||
by Insurers under this Agreement, or (ii) result from a breach of a material provision of | ||
this Agreement. ING will reimburse any legal or other expenses reasonably incurred by | ||
Distributor or any such director, officer, employee, agent, or controlling person in | ||
connection with investigating or defending any such loss, claim, damage, liability or | ||
action; provided, however, that ING will not be liable for indemnification hereunder to | ||
the extent that any such loss, claim, damage, liability or action arises out of or is based | ||
upon the gross negligence or willful misconduct of Distributor or any such director, | ||
officer, employee, agent or any controlling person herein defined in performing their | ||
obligations under this Agreement. |
(b) Distributor agrees to indemnify and hold harmless each of ING Financial and | ||
Insurers, the Nominee and each of their directors, officers, employees, agents and each | ||
person, if any, who controls ING Financial and Insurers and the Nominee within the | ||
meaning of the 1933 Act against any losses, claims, damages or liabilities to which ING | ||
Financial or Insurers, the Nominee, or any such director, officer, employee, agent or | ||
controlling person may become subject, insofar as such losses, claims, damages or | ||
liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue | ||
statement of any material fact contained in the registration statement, prospectus or sales | ||
literature of the Funds provided by Distributor or arise out of, or are based upon, the | ||
omission or the alleged omission to state a material fact that is necessary to make the | ||
statements therein not misleading or (ii) result from a breach of a material provision of | ||
this Agreement. Distributor will reimburse any legal or other expenses reasonably | ||
incurred by ING Financial or Insurers, the Nominee, or any such director, officer, | ||
employee, agent, or controlling person in connection with investigation or defending any | ||
such loss, claim, damage, liability or action; provided, however, that will not be liable for | ||
indemnification hereunder to the extent that any such loss, claim, damage or liability | ||
arises out of, or is based upon, the gross negligence or willful misconduct of ING | ||
Financial or Insurers, the Nominee or their respective directors, officers, employees, | ||
agents, or any controlling person herein defined in the performance of their obligations | ||
under this Agreement. | ||
(c) Promptly after receipt by an indemnified party hereunder of notice of the | ||
commencement of action, such indemnified party will, if a claim in respect thereof is to | ||
be made against the indemnifying party hereunder, notify the indemnifying party of the | ||
commencement thereof, but the omission so to notify the indemnifying party will not | ||
relieve it from any liability that it may have to any indemnified party otherwise than under | ||
this Section 11. In case any such action is brought against any indemnified party, and it | ||
notifies the indemnifying party of the commencement thereof, the indemnifying party will | ||
be entitled to participate therein and, to the extent that it may wish to, assume the defense | ||
thereof, with counsel satisfactory to such indemnified party, and after notice from the | ||
indemnifying party to such indemnified party of its election to assume the defense | ||
thereof, the indemnifying party will not be liable to such indemnified party under this | ||
Section 11 for any legal or other expenses subsequently incurred by such indemnified | ||
party in connection with the defense thereof other than reasonable costs of investigation. | ||
12. | Representations and Warranties. | |
(a) Representations of Insurers. Each Insurer represents and warrants: |
(i) that it (1) is a life insurance company organized under the laws of the |
State of Connecticut, the State of Minnesota and the State of New York, respectively, (2) |
is in good standing in that jurisdiction, (3) is in material compliance with all applicable |
federal and state insurance laws, (4) is duly licensed and authorized to conduct business |
in every jurisdiction where such license or authorization is required, and will maintain |
such license or authorization in effect at all times during the term of this Agreement, and |
(5) has full authority to enter into this Agreement and carry out its obligations pursuant to |
it terms; and |
(ii) that it is authorized under the Plans to (1) provide administrative |
services to the Plans and (2) facilitate transactions in the Fund through the Account. |
(b) Representations of ING Financial. ING Financial represents and warrants: |
(i) that it (1) is a member in good standing of the NASD, (2) is registered |
as a broker-dealer with the SEC, and (3) will continue to remain in good standing and be |
so registered during the term of this Agreement; |
(ii) that it (1) is a limited liability company duly organized under the laws |
of the State of Delaware , (2) is in good standing in that jurisdiction, (3) is in material |
compliance with all applicable federal, state and securities laws, (4) is duly registered and |
authorized to conduct business in every jurisdiction where such registration or |
authorization is required, and will maintain such registration or authorization in effect at |
all times during the term of this Agreement, and (5) has full authority to enter into this |
Agreement and carry out its obligations pursuant to the terms of this Agreement; |
(iii) that it is authorized under the Plans to make available investments of |
Plan assets in the name of the Nominee of each Plan or in the name of Insurers in shares |
of investment companies or other investment vehicles specified by Plan Representatives |
or Participants; and |
(iv) that it will not, without the written consent of Distributor, make |
representations concerning shares of the Funds except those contained in the then-current |
prospectus and in the current printed sales literature approved by either the Fund or |
Distributor. |
(c) Representations of Distributor. Distributor represents and warrants: |
(i) that the Funds (1) are duly organized under the laws of The |
Commonwealth of Massachusetts, (2) are in good standing in such jurisdiction. (3) are in |
material compliance with all applicable federal, state and securities laws, and (4) are duly |
licensed and authorized to conduct business in every jurisdiction where such license or |
authorization is required; |
(ii) that the shares of the Funds are registered under the 1933 Act, duly | ||
authorized for issuance and sold in compliance with the laws of the States and all | ||
applicable federal, state, and securities laws; that the Funds amend their registration | ||
statements under the 1933 Act and the 1940 Act from time to time as required or in order | ||
to effect the continuous offering of its shares; and that the Funds have registered and | ||
qualified its shares for sale in accordance with the laws of each jurisdiction where it is | ||
required to do so; | ||
(iii) that the Trusts of which the Funds are a series of are currently qualified | ||
as regulated investment companies under Subchapter M of the Internal Revenue Code of | ||
1986, as amended, and will make every effort to maintain such qualification, and that | ||
Distributor will notify ING Financial and Insurers immediately upon having a reasonable | ||
basis for believing that any of the Funds have ceased to so qualify or that any might not | ||
qualify in the future; | ||
(iv) that Distributor (1) is a member in good standing of the NASD, (2) is | ||
registered as a broker-dealer with the SEC, and (3) will continue to remain in good | ||
standing and be so registered during the term of this Agreement; and | ||
(v) that Distributor (1) is a limited liability company duly organized under | ||
the laws of the State of Delaware (2) is in good standing in that jurisdiction, (3) is in | ||
material compliance with all applicable federal, state, and securities laws, (4) is duly | ||
registered and authorized in every jurisdiction where such license or registration is | ||
required, and will maintain such registration or authorization in effect at all times during | ||
the term of this Agreement, and (5) has full authority to enter into this Agreement and | ||
carry out its obligations pursuant to the terms of this Agreement. | ||
13. | Governing Law. | |
This Agreement and all the rights and obligations of the parties shall be governed | ||
by and construed under the laws of the State of Connecticut without giving effect to the | ||
principles of conflicts of laws and the provisions shall be continuous. | ||
14. | Miscellaneous. | |
(a) Amendment and Waiver. Neither this Agreement nor any provision hereof | ||
may be amended, waived, discharged or terminated orally, but only by an instrument in | ||
writing signed by all parties hereto. | ||
(b) Notices. All notices and other communications hereunder shall be given or | ||
made in writing and shall be delivered personally, or sent by telex, facsimile, express | ||
delivery or registered or certified mail, postage prepaid, return receipt requested, to the | ||
party or parties to whom they are directed at the following address, or at such other | ||
addresses as may be designated by notice from such party to all other parties. |
To ING: |
ING Financial Advisers, LLC/ING Life Insurance and Annuity |
Company/ReliaStar Life Insurance Company/ReliaStar Life Insurance |
Company of New York |
000 Xxxxxxxxxx Xxxxxx |
Xxxxxxxx, XX 00000 |
Attention: Xxxxx X. Xxxxxxxx, Counsel |
(000) 000-0000 |
To Distributor: |
PIMCO Advisors Distributors LLC |
0000 Xxxxxxxx Xxxxxx |
Xxxxxxxx, XX 00000 |
Attention: President |
Any notice, demand or other communication given in a manner prescribed in this |
Subsection (b) shall be deemed to have been delivered on receipt. |
(c) Successors and Assigns. This Agreement shall be binding upon and inure to |
the benefit of the parties hereto and their respective permitted successors and assigns. |
(d) Counterparts. This Agreement may be executed in any number of |
counterparts, all of which taken together shall constitute one agreement, and any party |
hereto may execute this Agreement by signing any such counterpart. |
(e) Severability. In case any one or more of the provisions contained in this |
Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality |
and enforceability of the remaining provisions contained herein shall not in any way be |
affected or impaired thereby. |
(f) Entire Agreement. This Agreement constitutes the entire agreement and |
understanding between the parties hereto relating to the subject matter hereof, and |
supersedes all prior agreements and understandings relating to such subject matter. |
IN WITNESS WHEREOF, the undersigned have executed this Agreement by | ||
their duly authorized officers as of the date first written above. | ||
ING LIFE INSURANCE AND ANNUITY COMPANY | ||
By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
Name: | Xxxxxx X. Xxxxxxxxxxx | |
Title: | Vice President | |
RELIASTAR LIFE INSURANCE COMPANY | ||
By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
Name: | Xxxxxx X. Xxxxxxxxxxx | |
Title: | Vice President | |
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK | ||
By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
Name: | Xxxxxx X. Xxxxxxxxxxx | |
Title: | Vice President | |
ING FINANCIAL ADVISERS, LLC | ||
By: | /s/ Xxxxxxxxx Xxxxxx | |
Name: | Xxxxxxxxx Xxxxxx | |
Title: | Vice President | |
PIMCO ADVISORS DISTRIBUTORS LLC | ||
By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
Name: | Xxxxxx X. Xxxxxx, Xx. | |
Title: | Managing Director |
Schedule A |
For any additional separate accounts
EXHIBIT I | ||
To | ||
SELLING AND SERVICES AGREEMENT | ||
Procedures for Pricing and Order/Settlement Through National Securities Clearing Corporation’s | ||
Mutual Fund Profile System and Mutual Fund Settlement, Entry and Registration Verification System | ||
1. | As provided in Section 3(f) of the Selling and Services Agreement and Fund Participation | |
Agreement the parties hereby agree to provide pricing information execute orders and wire | ||
payments for purchases and redemptions of Fund shares through National Securities Clearing | ||
Corporation (“NSCC”) and its subsidiary systems as follows: | ||
(a) | Distributor or the Funds will furnish to ING Financial or its affiliate through NSCC’s | |
Mutual Fund Profile System (“MFPS”) (1) the most current net asset value information | ||
for each Fund, (2) a schedule of anticipated dividend and distribution payment dates for | ||
each Fund, which is subject to change without prior notice, ordinary income and capital | ||
gain dividend rates on the Fund’s ex-date, and (3) in the case of fixed income funds that | ||
declare daily dividends, the daily accrual or the interest rate factor. The Distributor or the | ||
Funds shall use commercially reasonable efforts to furnish to ING Financial or its | ||
affiliate all such information by 6:30 p.m. East Coast Time, but will in no event provide | ||
such information later than 7:00 p.m. East Coast Time on each business day that the | ||
Fund is open for business (each a "Business Day") or at such other time as that | ||
information becomes available. Changes in pricing information will be communicated to | ||
both NSCC and ING Financial or its affiliate. | ||
(b) | Upon receipt of Fund purchase, exchange and redemption instructions for acceptance as | |
of the time at which a Fund's net asset value is calculated as specified in such Fund's | ||
prospectus ("Close of Trading") on each Business Day ("Instructions"), and upon its | ||
determination that there are good funds with respect to Instructions involving the | ||
purchase of Shares, ING Financial or its affiliate will calculate the net purchase or | ||
redemption order for each Fund. Orders for net purchases or net redemptions derived | ||
from Instructions received by ING Financial or its affiliate prior to the Close of Trading | ||
on any given Business Day will be sent to the Defined Contribution Interface of NSCC’s | ||
Mutual Fund Settlement, Entry and Registration Verification System (“Fund/SERV”) by | ||
5:00 a.m. East Coast Time on the next Business Day. Subject to ING Financial’s or its | ||
affiliate’s compliance with the foregoing, ING Financial or its affiliate will be considered | ||
the agent of the Distributor and the Funds, and the Business Day on which Instructions | ||
are received by ING Financial or its affiliate in proper form prior to the Close of Trading | ||
will be the date as of which shares of the Funds are deemed purchased, exchanged or | ||
redeemed pursuant to such Instructions. Instructions received in proper form by ING | ||
Financial or its affiliate after the Close of Trading on any given Business Day will be | ||
treated as if received on the next following Business Day. Dividends and capital gains | ||
distributions will be automatically reinvested at net asset value in accordance with the | ||
Fund's then current prospectuses. |
(c) | ING Financial or its affiliate shall use its best efforts to wire payment for net purchase | |
orders by the Fund’s NSCC Firm Number, in immediately available funds, to an NSCC | ||
settling bank account designated by ING Financial or its affiliate by 3:00 p.m. East Coast | ||
Time, but will in no event wire such payment later than 5:00 p.m. East Coast time on the | ||
same Business Day such purchase orders are communicated to NSCC. For purchases of | ||
shares of daily dividend accrual funds, those shares will not begin to accrue dividends | ||
until the day the payment for those shares is received. | ||
(d) | NSCC shall use its best efforts to wire payment for net redemption orders by Fund, in | |
immediately available funds, to an NSCC settling bank account designated by ING | ||
Financial or its affiliate, by 3:00 p.m. East Coast Time, but will in no event wire such | ||
payment later than 5:00 p.m. East Coast Time on the Business Day such redemption | ||
orders are communicated to NSCC, except as provided in a Fund's prospectus and | ||
statement of additional information. | ||
(e) | With respect to (c) or (d) above, if Distributor does not send a confirmation of ING | |
Financial’s or its affiliate’s purchase or redemption order to NSCC by the applicable | ||
deadline to be included in that Business Day’s payment cycle, payment for such | ||
purchases or redemptions will be made the following Business Day. | ||
(f) | If on any day ING Financial or its affiliate or Distributor is unable to meet the NSCC | |
deadline for the transmission of purchase or redemption orders, it may at its option | ||
transmit such orders and make such payments for purchases and redemptions directly to | ||
Distributor or to ING Financial or its affiliate, as applicable, as is otherwise provided in | ||
the Agreement. | ||
(g) | These procedures are subject to any additional terms in each Fund's prospectus and the | |
requirements of applicable law. The Funds reserve the right, at their discretion and | ||
without notice, to suspend the sale of shares or withdraw the sale of shares of any Fund. | ||
2. | ING Financial or its affiliate, Distributor and clearing agents (if applicable) are each | |
required to have entered into membership agreements with NSCC and met all requirements | ||
to participate in the MFPS and Fund/SERV systems before these procedures may be | ||
utilized. Each party will be bound by the terms of their membership agreement with NSCC | ||
and will perform any and all duties, functions, procedures and responsibilities assigned to it | ||
and as otherwise established by NSCC applicable to the MFPS and Fund/SERV system and | ||
the Networking Matrix Level utilized. | ||
3. | Except as modified hereby, all other terms and conditions of the Agreement shall remain | |
in full force and effect. Unless otherwise indicated herein, the terms defined in the | ||
Agreement shall have the same meaning as in this Exhibit. |
EXHIBIT II |
PIMCO NFJ Small-Cap Value Fund |
PIMCO RCM Global Technology Fund |
PIMCO CCM Capital Appreciation Fund |
PIMCO PEA Growth Fund |
PIMCO PEA Innovation Fund |
PIMCO PEA Opportunity Fund |
PIMCO PEA Renaissance Fund |
PIMCO PEA Target Fund |
PIMCO PEA Value Fund |
PIMCO RCM Large-Cap Growth Fund |
PIMCO RCM Biotechnology Fund |
PIMCO CCM Mid-Cap Fund |