EXHIBIT 99-(3)(a): FORM OF RELIASTAR LIFE INSURANCE COMPANY
DISTRIBUTION AGREEMENT BETWEEN RELIASTAR
LIFE INSURANCE COMPANY AND ING AMERICA EQUITIES, INC.
RELIASTAR LIFE INSURANCE COMPANY DISTRIBUTION AGREEMENT
This agreement made effective May 1, 2002, by and between ReliaStar
Life Insurance Company, a Minnesota domestic insurance company ("ING Reliastar")
on its own behalf and on behalf of the ReliaStar Select*Life Variable Account
("Separate Account") and ING America Equities Inc., a Colorado corporation
("INGAE").
WHEREAS, ING Reliastar has established and maintains the Separate
Account as a separate investment account for the purposes of funding and
distribution of variable life insurance contracts ("Contracts"); and
WHEREAS, the Separate Account is registered as a Unit Investment Trust
under the Investment Company Act of 1940 ("1940 Act") or exempt therefrom; and
WHEREAS, ING Reliastar previously entered into a Distribution Agreement
with Washington Square Securities, Inc. that terminates on April 30, 2002; and
WHEREAS, ING Reliastar now desires to retain INGAE as its Distributor
and Principal Underwriter to provide for the sale and distribution of the
Contracts issued by ING Reliastar and funded by interests in the general account
of ING Reliastar and the Separate Account; and
WHEREAS, INGAE is registered as a broker/dealer under the Securities
Exchange Act of 1934 ("1934 Act") and is a member of the National Association of
Securities Dealers Inc. ("NASD").
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
I. PRINCIPAL UNDERWRITER
ING Reliastar appoints INGAE for the term of this Agreement, subject to
the registration requirements of the Securities Act of 1933 ("1933 Act"), and
the 1940 Act and 1934 Act to be the Distributor and Principal Underwriter for
the sale of Contracts in all states and jurisdictions in which the Contracts may
lawfully be sold.
ING Reliastar also appoints INGAE as its independent general agent for
sale of its Contracts as ING Reliastar may, from time to time, authorize in
writing by amendment hereto.
INGAE shall offer the Contracts for sale and distribution at rates set
by ING Reliastar.
II. SELLING AGREEMENTS
INGAE is authorized to enter into separate written agreements, on such
terms and conditions as INGAE determines are consistent with this Agreement,
with such qualified entities which agree to participate as a general agent or
broker/dealer, as appropriate, in the
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distribution of the Contracts and to use their best efforts to solicit
applications for Contracts. Each such broker/dealer ("Broker/Dealer") shall be
registered as a broker/dealer under the 1934 Act and shall be a member in good
standing of the NASD. INGAE is responsible for ensuring that Broker/Dealer and
its agents or representatives and general agents and sub-agents soliciting
applications for Contracts shall be duly and appropriately licensed, registered
and otherwise qualified for sale of the Contracts under the insurance laws and
applicable securities laws of each state or jurisdiction in which such Contracts
may lawfully be sold and in which ING Reliastar is authorized to sell such
contracts. ING Reliastar shall undertake to appoint Broker/Dealer's qualified
agents or representatives and general agents and sub-agents as life insurance
agents of ING Reliastar, provided that ING Reliastar reserves the right to
refuse to appoint any representative, agent, or sub-agent, or once appointed, to
terminate such appointment. INGAE shall be responsible for ensuring that
Broker/Dealer and general agents supervise their agents, representatives and
sub-agents.
INGAE is authorized to enter into separate written agreements on such
terms and conditions as INGAE determines are consistent with this agreement with
such entities that agree to participate in the distribution of the Contracts and
will use its best efforts to solicit Broker/Dealers and general agents who will
in turn solicit applications of the Contracts ("Wholesalers").
III. LIFE INSURANCE AGENTS
ING Reliastar is responsible for ensuring that each Broker/Dealer and
its agents or representatives and general agents and sub-agents meet all
qualifications and hold such licenses or authorizations that are required for
the solicitation or sale of the Contracts under the insurance laws of applicable
jurisdictions.
IV. SUITABILITY
ING Reliastar desires to ensure that Contracts are sold only to
purchasers for whom the Contracts are suitable. INGAE shall take reasonable
steps to ensure that the agents or representatives of Broker/Dealer and
sub-agents of general agents shall not make recommendations or solicitations of
the Contracts to an applicant in the absence of reasonable grounds to believe
that the purchase of the Contracts is suitable for each such applicant. A
determination of suitability shall be based on information obtained by such
representative, agent or sub-agent after reasonable inquiry of such applicant
concerning, but not limited to the following: applicant's other security
holdings, insurance and investment objectives, total financial situation and
needs, applicant's ability to make continuing premium payments as contemplated
by the Contracts, applicant's desire and ability to keep the Contracts in force
for an appropriate period of time, applicant's marital status and dependents,
along with such other information as is reasonable or is deemed reasonable by
insurance or securities regulators.
V. CONFORMITY WITH DISCLOSURE DOCUMENTS AND SALES MATERIALS
In performing its duties as Distributor, INGAE will act in conformity
with the final disclosure documents, the instructions and directions of ING
Reliastar, the requirements of the 1933 Act, the 1940 Act, the 1934 Act, and
other applicable federal and state laws and regulations. INGAE shall not give
information nor make representations concerning any aspect of the Contracts or
of ING Reliastar's operations to any person or entity unless such
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information or representations are contained in the disclosure documents for the
Contracts or are contained in sales or promotional literature prepared and
approved by ING Reliastar. INGAE will not use and will take reasonable steps to
ensure that Broker/Dealer will not use any sales promotion materials or
advertising used in connection with the sale of the Contracts that has not been
approved in writing by ING Reliastar prior to such use.
VI. EXPENSES
During the term of this agreement INGAE will be responsible for all of
its expenses in complying with the terms of this agreement including, but not
limited to, the following items: (a) costs associated with making and
distributing sales presentations, mailings, sales promotion materials,
advertising and other marketing efforts by INGAE in connection with the
distribution or sale of the Contracts; and (b) compensation paid to employees of
INGAE and to Wholesalers, Broker/Dealers, and general agents in connection with
the distribution or sale of the Contracts.
Notwithstanding any other provision of this agreement, it is understood
and agreed that ING Reliastar shall, at all times, retain the ultimate
responsibility for, and control of, all functions performed pursuant to this
agreement. Further, ING Reliastar retains responsibility for and control of the
marketing of the Contracts and reserves the right to direct, approve, or
disapprove any action taken on its behalf by INGAE.
VII. APPLICATIONS
Completed applications for Contracts solicited by Broker/Dealers
through its agents or representatives and general agents or sub-agents shall be
transmitted directly to ING Reliastar at such address as ING Reliastar may from
time to time specify. All payments made for or under the Contracts shall be made
by check payable to "Reliastar Life Insurance Company" or by such other method
specified as acceptable to ING Reliastar. If payment is received by INGAE, it
shall be deemed to be, at all times, in a fiduciary capacity only and such
payment shall be remitted promptly to ING Reliastar. All such payments are the
property of ING Reliastar. ING Reliastar has the sole authority to approve or
reject applications or payments and maintains ultimate responsibility for
Contract underwriting. Notwithstanding any provision in this agreement to the
contrary, ING Reliastar retains the ultimate right to control the sale of the
Contracts and to appoint and discharge life insurance agents of ING Reliastar.
VIII. STANDARD OF CARE
INGAE is responsible for exercising reasonable care in carrying out the
terms of this agreement.
IX. REPORTS
INGAE is responsible for maintaining the records relating to
Broker/Dealers and general agents and their agents, representatives or
sub-agents who are licensed, registered, or otherwise qualified to sell the
Contracts. INGAE is also responsible for calculating and furnishing the fees
payable to Broker/Dealers or general agents and for furnishing such periodic
reports to ING Reliastar pertaining to the sale of Contracts pursuant to this
agreement as may be required by ING Reliastar from time to time.
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X. RECORDS
INGAE shall, at all times, maintain and preserve such records as are
required by applicable laws and regulations. The books, accounts and records of
ING Reliastar, the Separate Account, and INGAE shall be maintained so as to
disclose, clearly and accurately, the nature and details of the transactions
relating to the Contracts. Such books, accounts and records shall include such
accounting information as is necessary to support the reasonableness of the
amounts to be paid by ING Reliastar under this agreement.
XI. COMPENSATION
ING Reliastar shall arrange for the payment of commissions, on behalf
of INGAE, to those Broker/Dealers and general agents who sell Contracts under
agreements entered into pursuant to Section II of this agreement, and to
wholesalers who solicit Broker/Dealers and general agents to sell Contracts
under agreements entered into pursuant to Section II of this agreement, in such
amounts as is agreed to and specified in such written agreements by ING
Reliastar and INGAE.
ING Reliastar agrees to reimburse INGAE for services rendered and
product development relating to the sales efforts and other continuing
obligations under this agreement. The charge to ING Reliastar for such services
and obligations shall include all directly allocable expenses, reasonably and
equitably determined to be attributable to ING Reliastar by INGAE, plus a
separately determined portion of reasonable costs associated with INGAE
operational and regulatory costs and expenses that are not directly attributable
to ING Reliastar or other specific insurer for which INGAE provides services.
The amount of such costs shall be agreed upon by the parties from time to time.
The basis for the determination of such charges to ING Reliastar shall
be those used by INGAE for internal cost distribution. Such basis shall be
modified and adjusted by mutual agreement as necessary or appropriate to reflect
the actual incidence of costs incurred by INGAE on behalf of ING Reliastar.
Each month, INGAE shall submit to ING Reliastar a written statement of
the amount owed by ING Reliastar for services rendered pursuant to this
agreement for the month just ended. ING Reliastar shall pay the amount due to
INGAE by the date due indicated on the statement.
If ING Reliastar objects to an amount payable on a statement, it shall
notify INGAE of such objection within thirty (30) calendar days of receipt of
the statement. If the parties are unable to reconcile such objection, they
hereby agree to select a firm of independent certified public accountants
("CPA"). The CPA shall determine the charges properly allocable to ING Reliastar
and shall, within a reasonable time, submit such determination along with the
basis therefore, in writing, to INGAE and ING Reliastar. Such CPA determination
shall be binding upon the parties. The cost of such a determination by the CPA
shall be born equally by INGAE and ING Reliastar.
XII. INVESTIGATIONS AND PROCEEDINGS
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INGAE and ING Reliastar agree to cooperate fully with each other in all
insurance or securities investigations or proceedings or judicial proceedings
arising in connection with the Contracts distributed under this agreement. INGAE
further agrees to furnish such regulatory authorities with information or
reports in connection with such services as may be requested in connection with
the operations of ING Reliastar or the Separate Account in connection with such
investigation or proceedings. INGAE and ING Reliastar further agree to cooperate
fully in any regulatory investigation or proceeding with respect to their
affiliates or their agents and representatives to the extent that such
investigation or proceeding is in connection with the Contracts distributed
under this agreement. Without limiting any provision of this Section XII:
(a) INGAE will be notified promptly of all customer complaints or
notices of all regulatory investigations or proceedings or
judicial proceedings received by ING Reliastar with respect to
INGAE or any agents, representatives, or sub-agents of a
Broker/Dealer or general agent or other investigation or
proceeding which may affect ING Reliastar's issuance of Contracts
distributed or sold under this agreement;
(b) INGAE will promptly notify ING Reliastar of all customer
complaints or notices of all regulatory investigations or
proceedings received by INGAE or its affiliates with respect to
ING Reliastar or its agents, representatives, or sub-agents of a
Broker/Dealer or general agent in connection with Contracts
distributed or sold under this agreement, or other activity in
connection with such Contracts.
In the case of a customer complaint, INGAE and ING Reliastar will
cooperate fully with each other in investigating such complaint and an
appropriate response will be sent to the other party under this agreement for
approval at least five (5) business days prior to its distribution to the
customer or regulatory authority, except that if a more prompt response is
required, the response may be communicated by telephone or electronic means.
XIII. INDEMNIFICATION
ING Reliastar hereby agrees to indemnify and hold harmless INGAE and
its officers, directors, and employees for all expenses (including legal
expenses), losses, claims, damages, or liabilities incurred by reason of untrue
or alleged untrue statements or representations of a material fact or omission
or alleged omission to state a material fact required to be stated to make other
statements not misleading, if made in reliance on any disclosure document,
prospectus, registration statement, post effective amendment, or sales material
supplied or approved by ING Reliastar or the Separate Account. ING Reliastar
shall reimburse each such person for legal or other expenses reasonably incurred
in connection with the investigation or defense of such loss, liability, damage
or claim. However, in no case shall ING Reliastar be required to indemnify INGAE
for expenses, losses, claims, damages, or liabilities which have resulted from
the willful misfeasance, bad faith, negligence, misconduct or wrongful act of
INGAE.
INGAE hereby agrees to indemnify and hold harmless ING Reliastar, its
officers, directors, and employees and the Separate Account for expenses,
losses, claims, damages, or liabilities arising out of or based upon one or more
of the following circumstances in connection with the offer or sale of the
Contracts.
(a) Untrue, or alleged untrue statements or representations made,
except for statements made in reliance upon any disclosure
document, prospectus,
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registration statement, or sales materials supplied or approved by
ING Reliastar or the Separate Account.
(b) Failure to deliver a currently effective prospectus or other
disclosure document.
(c) Use of unauthorized sales literature by an officer, employee,
agent, or sub-agent of INGAE, Broker/Dealer or general agent.
(d) Willful misfeasance, bad faith, negligence, misconduct or wrongful
act.
INGAE shall reimburse each such person for legal or other expenses
reasonably incurred in connection with the investigation or defense of any such
loss, liability, damage or claim.
Promptly after receipt by the party entitled to indemnification
("Indemnified Party") of a notice of commencement of an action, if a claim for
indemnification in response thereto is to be made against ING Reliastar or INGAE
("Indemnifying Party") such Indemnified Party will notify Indemnifying Party in
writing of the commencement thereof. Failure to notify the Indemnifying Party of
such claim shall not relieve Indemnifying Party from any liability which it may
have had pursuant to the terms of this section XIII. The Indemnifying Party
shall be entitled to participate in the defense of the Indemnified Party and
such participation shall not relieve such Indemnifying Party of the obligation
to reimburse the Indemnified Party for reasonable legal and other expenses
incurred by such Indemnified Party in defending itself.
XIV. AGENT OF ING RELIASTAR OR SEPARATE ACCOUNT
A person, even though also an officer, director, employee, or agent of
INGAE, who may be or become an officer, director, employee, or agent of ING
Reliastar or the Separate Account shall be deemed, when rendering services to
ING Reliastar or to the Separate Account or acting in any business of ING
Reliastar or the Separate Account, to be rendering such services to or acting
solely in the capacity of ING Reliastar or the Separate Account, and not as an
officer, director, employee, agent, or one under the control or direction of
INGAE, even if paid by INGAE. Likewise, a person, even though also an officer,
director, employee, or agent of ING Reliastar or the Separate Account who may be
or become an officer, director, employee, or agent of INGAE shall be deemed,
when rendering services to INGAE or acting in any business of INGAE to be
rendering such services to or acting solely for INGAE, and not as an officer,
director, employee, agent, or one under the control or direction of ING
Reliastar or the Separate Account, even if paid by ING Reliastar or the Separate
Account.
XV. BOOKS AND RECORDS
It is expressly understood and agreed by the parties that all
documents, reports, records, books, files, and other materials relating to this
agreement and the services to be performed hereunder shall be the sole property
of ING Reliastar and the Separate Account. All such property shall be held by
INGAE as agent, during the effective term of this agreement. Such material shall
be delivered to ING Reliastar upon the termination of this agreement free from
any claim or retention of rights by INGAE, except as may be required by law.
During the term of this agreement and for a period of three (3) years from the
date of termination of this agreement, INGAE will not disclose or use records or
information and will regard and preserve as confidential all information related
to the business of ING Reliastar or the Separate Account that
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may have been obtained by INGAE from any source as a result of this agreement
and will disclose such information only if ING Reliastar or the Separate Account
have authorized such disclosure or if such disclosure is expressly required by
federal, state or other regulatory authorities. INGAE further acknowledges and
agrees, in the event of a breach or threatened breach by it of the provisions of
this article, ING Reliastar will have no adequate remedy in money or damages and
accordingly, ING Reliastar shall be entitled, in its discretion, to seek an
injunction against such breach. However, no specification in this agreement of a
specific legal or equitable remedy shall be construed as a waiver or a
prohibition against any other legal or equitable remedy in the event of a breach
of a provision of this agreement.
XVI. EMPLOYEES
INGAE will not employ, except with the prior written approval of the
Commissioner of Insurance of the State of Texas, in connection with the handling
of the Separate Account's assets any person who, to the knowledge of INGAE:
(a) In the last ten (10) years has been convicted of a felony or
misdemeanor arising out of conduct involving embezzlement,
fraudulent conversion, or misappropriation of funds or securities,
or involving violations of Sections 1341, 1342, or 1343 of Xxxxx
00, Xxxxxx Xxxxxx Code; or
(b) Within the last ten (10) years has been found by a state
regulatory authority to have violated or has acknowledged a
violation of a provision of a state insurance law involving fraud,
deceit, or knowing misrepresentation; or
(c) Within the last ten (10) years has been found by a federal or
state or other regulatory authority to have violated or have
acknowledged a violation of a provision of federal or state
securities laws or other regulation involving fraud, deceit, or
knowing misrepresentation.
XVII. TERMINATION
This agreement shall terminate automatically upon its assignment
without the prior written consent of all parties. This agreement may be
terminated at any time, for any reason, by either party on sixty (60) days'
written notice to the other party, without payment of a penalty. Upon
termination of this agreement, all authorizations, rights and obligations shall
cease except the obligation to settle accounts hereunder, including commissions
on premium subsequently received for the Contracts in effect at the time of
termination, and the provisions contained in Sections XII and XIII, which shall
survive indefinitely.
XVIII. REGULATION
This agreement shall be subject to the provisions of the 1940 Act and
the 1934 Act and the rules, regulations and rulings thereunder, and of the
applicable rules and regulations of the NASD, and applicable state insurance and
securities laws, and other applicable laws, as may be in effect from time to
time, and the terms hereof shall be interpreted and construed in accordance
therewith.
XIX. INDEPENDENT CONTRACTOR
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INGAE shall act as an independent contractor and nothing herein shall
constitute INGAE or its agents, officers, directors, or employees as agents,
officers, or employees of ING Reliastar in connection with the sale or
distribution of the Contracts.
XX. NOTICES
Notices to be given to INGAE shall be in writing and dually given if
mailed, first class postage pre-paid or otherwise delivered to INGAE: Attention
Chief Compliance Officer, INGAE, 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000, or at
such other address or to such individual as may be specified by INGAE. Notices
to be given to ING Reliastar or the Separate Account shall be in writing and
shall be duly given if mailed, first class postage pre-paid, or otherwise
delivered to ING Reliastar: Attention President, ING Reliastar, 00 Xxxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,xx at such other address or to such
individual as may be specified by ING Reliastar.
XXI. SEVERABILITY
If a provision of this agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise the remainder of this agreement
shall not be affected.
XXII. GOVERNING LAW
This agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Minnesota.
In witness whereof the parties hereto have caused this agreement to be
duly executed to be effective as of the day and year first written above.
RELIASTAR LIFE INSURANCE COMPANY ING AMERICA EQUITIES, INC.
By: By:
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Date: Date:
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SCHEDULE A COMPENSATION SCHEDULE
This Schedule A to the Distribution Agreement between ING Reliastar and INGAE
dated May 1, 2002, sets forth the compensation to be paid to INGAE for its
services as Principal Underwriter and Distributor of the following products.
1) FlexDesign VUL
A Flexible Premium Variable Universal Life Policy
Total gross dealer concessions earned by selling Broker/Dealer pursuant
to its selling agreement with ING Reliastar and INGAE.
All trail commissions, including renewal and ultimate commissions,
calculated by ING Reliastar to be due and payable to the selling
Broker/Dealer under the selling agreement. Additional payments as are
due for bonuses, override payments, expense allowances, wholesale fees
and other expenses.
2) Select*Life II
A Flexible Premium Variable Universal Life Policy
Total gross dealer concessions earned by selling Broker/Dealer pursuant
to its selling agreement with ING Reliastar and INGAE.
All trail commissions, including renewal and ultimate commissions,
calculated by ING Reliastar to be due and payable to the selling
Broker/Dealer under the selling agreement.
Additional payments as are due for bonuses, override payments, expense
allowances, wholesale fees and other expenses.
3) Select*Life III
A Flexible Premium Variable Universal Life Policy
Total gross dealer concessions earned by selling Broker/Dealer pursuant
to its selling agreement with ING Reliastar and INGAE.
All trail commissions, including renewal and ultimate commissions,
calculated by ING Reliastar to be due and payable to the selling
Broker/Dealer under the selling agreement.
Additional payments as are due for bonuses, override payments, expense
allowances, wholesale fees and other expenses.
4) Variable Accumulation Design
A Flexible Premium Variable Universal Life Policy
Total gross dealer concessions earned by selling Broker/Dealer pursuant
to its selling agreement with ING Reliastar and INGAE.
All trail commissions, including renewal and ultimate commissions,
calculated by ING Reliastar to be due and payable to the selling
Broker/Dealer under the selling agreement.
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Additional payments as are due for bonuses, override payments, expense
allowances, wholesale fees and other expenses.
5) Variable Estate Design
A Flexible Premium Variable Universal Life Policy
Total gross dealer concessions earned by selling Broker/Dealer pursuant
to its selling agreement with ING Reliastar and INGAE.
All trail commissions, including renewal and ultimate commissions,
calculated by ING Reliastar to be due and payable to the selling
Broker/Dealer under the selling agreement.
Additional payments as are due for bonuses, override payments, expense
allowances, wholesale fees and other expenses.
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