Exhibit 1.A(3)(f)
SELLING AGREEMENT
PURPOSE
Makes possible the payment of variable contracts COMMISSIONS for any
representative of the contracted Broker/Dealer
PARTIES TO THE CONTRACT
1) Retail BROKER/DEALER
2) Broker/dealer's AGENCY(IES)* through which insurance is written
3) Southland Life
4) ING America Equities
o AGENCY(IES) MUST EXECUTE THE SELLING AGREEMENT, AS WELL AS BROKER/DEALER.
IF BROKER/DEALER HAS STATE-SPECIFIC AGENCIES SEEKING APPOINTMENT, EACH SUCH
AGENCY SOUTH SIGN.
OTHER PREREQUISITES
1) The representative AND the corporate entity for whom the commission is
intended must have the appropriate variable contracts APPOINTMENT by
Southland.
COMPENSATION
1) Commissions will be paid directly to the BROKER/DEALER.
SPECIAL CONSIDERATIONS
A "WHOLESALING AGREEMENT" (see separate sheet) must also be in effect between
Southland and the representative's broker/dealer if the representative is an
RSD, Field Director or General Agent seeking "overrides," including overrides on
his/her own sales.
WHOLESALER (PRINT NAME):
BROKER-DEALER SUPERVISORY AND SELLING AGREEMENT
FOR VARIABLE CONTRACTS
THIS BROKER-DEALER SUPERVISORY AND SELLING AGREEMENT (the "Agreement") is made
this _____ day of _________________, 20___, by and among SOUTHLAND LIFE
INSURANCE COMPANY ("SOUTHLAND" or the "INSURER"), ING AMERICA EQUITIES, INC.
("ING AMERICA EQUITIES"), a broker-dealer registered with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1934 (the "1934 Act")
and a member of the National Association of Securities Dealers, Inc. ("NASD"),
_________________ ("SELLING BROKER-DEALER"), also a broker-dealer registered
with the SEC under the 1934 Act and a member of the NASD, and any insurance
agency subsidiaries or affiliates ("AGENCY OR AGENCIES") of SELLING
BROKER-DEALER, as listed on the signature pages of this Agreement.
RECITALS
WHEREAS, the INSURER issues certain variable life insurance policies
and variable annuity contracts (the "Contracts") and offers for sale such
Contracts in accordance with federal securities laws and the applicable laws of
those states in which the Contracts have been qualified for sale; and
WHEREAS, the INSURER has authorized ING AMERICA EQUITIES, as principal
underwriter and distributor of the Contracts, to enter into agreements, subject
to the consent of the INSURER, with SELLING BROKER-DEALERS and the AGENCIES for
the distribution of the Contracts; and
WHEREAS, SELLING BROKER-DEALER and the AGENCIES wish to participate in
the distribution of the Contracts, which are deemed to be securities under the
Securities Act of 1933 (the "1933 Act"); and
WHEREAS, SELLING BROKER-DEALER has registered representatives
("Representatives") who are also licensed and appointed as life insurance agents
of the INSURER, who will solicit and sell the Contracts; and
WHEREAS, SELLING BROKER-DEALER proposes to undertake certain
supervisory and administrative obligations described below in connection with
the distribution of the Contracts.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1) RELATIONSHIP OF PARTIES. The INSURER is the insurer and issuer of
Contracts covered by this Agreement. ING AMERICA EQUITIES is the
principal underwriter and distributor of the Contracts. SELLING
BROKER-DEALER represents that it is a registered broker-dealer under
the 1934 Act and a member of the NASD. The INSURER hereby appoints the
AGENCIES under the insurance laws and the INSURER and ING AMERICA
EQUITIES authorize the SELLING BROKER-DEALER under the securities laws
to distribute the Contracts. SELLING BROKER-DEALER agrees to supervise
the Representatives in connection with the distribution, solicitation
and sale of the Contracts and to perform other services as described
below.
2) AUTHORITY AND DUTIES OF SELLING BROKER-DEALER. SELLING BROKER-DEALER
agrees that it shall, at all times when performing its functions under
this Agreement, be registered as a securities
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broker-dealer with the SEC and will maintain its membership with the
NASD, and shall be licensed or registered as a securities broker-dealer
in the states that require such licensing or registration in connection
with supervision and other services pertaining to Contract sales
activities. SELLING BROKER-DEALER shall distribute the Contracts and
agrees that it shall have all the attendant duties, responsibilities
and liabilities associated with that function, for compliance,
supervision and servicing purposes. SELLING Broker-Dealer agrees to use
its best efforts to find suitable purchasers for the Contracts.
a) SELECTION AND SUPERVISION OF REPRESENTATIVES. SELLING
BROKER-DEALER shall select and employ Representatives and shall
have full responsibility for the training, supervision and control
of such Representatives as contemplated by Section 15(b)(4)(E) of
the 1934 Act and applicable NASD Rules. Such Representatives shall
be subject to the control of SELLING BROKER-DEALER with respect to
such persons' securities-regulated activities in connection with
the Contracts. SELLING BROKER-DEALER shall cause such
Representatives to be NASD registered representatives and
appropriately licensed with SELLING BROKER-DEALER before such
Representatives engage in the solicitation of applications for the
Contracts and shall cause such Representatives to limit
solicitation of applications for the Contracts to jurisdictions
where such Representatives are licensed and where the INSURER has
authorized solicitations of its Contracts. SELLING Broker-Dealer
agrees that it will permit only its Representatives who are
appointed with the INSURER to solicit and sell the Contracts.
The INSURER and ING AMERICA EQUITIES shall not have any
responsibility for the supervision of any Representative or any
other associated person or affiliate of SELLING BROKER-DEALER. If
the act or omission of a Representative or any other associated
person or affiliate of SELLING BROKER-DEALER is the proximate
cause of any claim, damage or liability (including reasonable
attorneys' fees) to the INSURER or ING AMERICA EQUITIES, SELLING
BROKER-DEALER and the AGENCIES shall be jointly and severally
responsible and liable entirely therefor.
b) NOTICE OF REPRESENTATIVE'S NONCOMPLIANCE. In the event a
Representative fails or refuses to submit to supervision of
SELLING BROKER-DEALER, ceases to be a Representative of SELLING
BROKER-DEALER, or fails to meet the rules and standards imposed by
SELLING BROKER-DEALER on its Representatives, SELLING
BROKER-DEALER shall certify such fact to the INSURER in writing
immediately, and shall immediately notify such Representative that
he or she is no longer authorized to sell the Contracts.
c) COMPLIANCE WITH NASD CONDUCT RULES AND FEDERAL AND STATE
SECURITIES LAWS. SELLING Broker-Dealer shall fully comply with the
requirements of the 1934 Act and all other applicable federal or
state laws and with the rules of the NASD and shall establish such
rules and procedures as may be necessary to cause diligent
supervision of the securities activities of Representatives.
SELLING BROKER-DEALER agrees to maintain appropriate books,
records and supervisory procedures as are required by the SEC,
NASD and other regulatory agencies having jurisdiction.
d) PURCHASER SUITABILITY. SELLING BROKER-DEALER shall be responsible
for suitability of the Contracts for the purchasers and shall take
reasonable steps to ensure that its Representatives shall not make
recommendations to applicants to purchase Contracts in the absence
of reasonable grounds to believe the purchase of each Contract is
suitable for the applicant. The procedure shall include review of
all proposals and applications for Contracts for suitability and
completeness and correctness as to form as well as review and
endorsement on an internal record of SELLING BROKER-DEALER of the
transactions. SELLING BROKER-DEALER shall promptly forward to the
INSURER'S Customer Service Center all applications found suitable,
together with any payments received with the applications, without
deduction or reduction.
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The INSURER reserves the right to reject any Contract application
and return any payment made in connection with an application
which is rejected. Unless otherwise agreed, Contracts issued on
applications accepted by the INSURER shall be forwarded to the
Representative of SELLING BROKER-DEALER for delivery to the
Contract owner.
e) PROSPECTUS AND STATEMENT OF ADDITIONAL INFORMATION. ING AMERICA
EQUITIES shall provide SELLING BROKER-DEALER with prospectuses and
any supplements or amendments thereto, and the Statement of
Additional Information ("SAI") describing the Contracts subject to
this Agreement. The INSURER is responsible for maintaining in
effect, in accordance with the requirements of the SEC, each
Registration Statement of which the prospectus is part. The
INSURER shall immediately notify SELLING BROKER-DEALER of the
issuance of any stop order or any federal or state regulatory
proceeding which would prevent the sale of their respective
Contracts in any state or jurisdiction. SELLING BROKER-DEALER
shall ensure compliance with the prospectus delivery requirements
of the 1933 Act. SELLING BROKER-DEALER agrees to deliver a copy of
the SAI concurrently with a copy of the prospectus to Contract
applicants in jurisdictions where such delivery may be required,
as so indicated by SOUTHLAND.
f) ADVERTISING AND SALES PROMOTION MATERIALS. SELLING BROKER-DEALER
shall perform the selling functions required by this Agreement
only in accordance with the terms and conditions of the then
current prospectus applicable to the Contracts and shall make no
representations not included in the prospectus or in any
authorized supplemental material, including illustrations. SELLING
BROKER-DEALER warrants that only advertising and sales materials,
including illustrations, approved by the INSURER and ING AMERICA
EQUITIES will be used by its Representatives in the solicitation
and sale of the Contracts.
g) SECURING APPLICATION. Each application for a Contract shall be
made on an application form provided by the INSURER and all
payments collected by SELLING BROKER-DEALER or any of its
Representatives shall be remitted promptly in full, together with
such application form and any other required documentation
directly to the INSURER at the address indicated on such
application or to such other address as may be designated by the
INSURER. All such payments and documents shall be the property of
the INSURER. SELLING BROKER-DEALER shall review all such
applications for completeness and for compliance with the
conditions herein including the suitability and prospectus
delivery requirements set forth above under Sections 2(d) and (e).
Check or money order in payment of such Contracts should be made
payable to the order of SOUTHLAND, as the issuer of the Contracts.
All applications are subject to acceptance or rejection by the
INSURER in its sole discretion.
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3. AUTHORITY AND DUTIES OF AGENCY.
a. Responsibilities Of The Agency.
(i) The AGENCY agrees to procure applications for the
INSURER'S Contracts. Production must be through the
SELLING BROKER-DEALER and subagents appointed by the
AGENCY, who are duly appointed by the INSURER.
(ii) The AGENCY warrants that it and all of its subagents
appointed pursuant to this Agreement shall not solicit nor
aid, directly or indirectly, in the solicitation of any
application for any Contract until they are fully licensed
by the proper authorities under the applicable insurance
laws within the applicable jurisdictions where the AGENCY
and subagents propose to offer the Contracts, where the
INSURER is authorized to conduct business and where the
Contracts may be lawfully sold.
(ii) The AGENCY shall periodically provide the INSURER
with a list of all subagents appointed by the AGENCY and
the jurisdictions where such subagents are licensed to
solicit sales of the Contracts.
(iv) The AGENCY shall prepare and transmit the appropriate
appointment forms to the INSURER. The AGENCY shall pay all
fees to state insurance regulatory authorities, all
initial appointment and renewal fees in connection with
obtaining necessary licenses and authorizations for AGENCY
and subagents to solicit and sell the Contracts. The
INSURER may refuse for any reason to apply for the
appointment of a subagent and may cancel any existing
appointment at any time.
(v) The AGENCY shall supervise all subagents appointed
pursuant to this Agreement to solicit sales of the
Contracts. If the act or omission of a subagent or any
other associated person or affiliate of the AGENCY is the
proximate cause of any claim, damage or liability
(including reasonable attorneys' fees) to the INSURER or
ING AMERICA EQUITIES, the AGENCY and SELLING BROKER-DEALER
shall be jointly and severally responsible and liable
entirely therefor. The AGENCY shall comply with and
exercise all responsibilities required by applicable
federal and state law and regulations. The AGENCY shall
train and supervise its subagents to ensure that purchase
of a Contract is not recommended to an applicant in the
absence of reasonable grounds to believe the purchase of
the Contract is suitable for that applicant. While not
limited to the following, a determination of suitability
shall be based on information furnished to a subagent
after reasonable inquiry of such applicant concerning the
applicant's insurance and investment objectives, financial
situation and needs, and the likelihood that the applicant
will continue to make any premium payments contemplated by
the Contracts and will keep the Contract in force.
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(vi) The AGENCY and SELLING BROKER-DEALER hereby warrant
and represent that before a subagent is permitted to sell
the Contracts, the AGENCY, SELLING BROKER-DEALER and
subagent shall have entered into a written agreement
pursuant to which: (I) subagent is appointed a subagent of
the AGENCY and a Representative of SELLING BROKER-DEALER,
(ii) subagent agrees that his or her selling activities
relating to the Contracts shall be under the supervision
and control of SELLING BROKER-DEALER; and (iii) that
subagent's right to continue to sell such Contracts is
subject to his or her continued compliance with such
agreement and any procedures, rules or regulations
implemented by SELLING BROKER-DEALER and the AGENCY.
(vii) The AGENCY agrees to treat money received or
collected for the INSURER as property held in trust, and
to remit such money promptly in full, together with the
application form and any other required documentation, to
the INSURER'S Customer Service Center at the address shown
on the application form for the Contract. All such payment
and documents shall be the property of the INSURER.
(viii) The AGENCY agrees to adhere to the "cash with
application" requirements as set forth in the INSURER's
rules and regulations, a copy of which the AGENCY
acknowledges it has received. The AGENCY further agrees,
when applicable, to provide the proper form of interim
coverage and inform the applicant of the specific
conditions of the coverage.
(ix) The AGENCY agrees to comply with the underwriting and
issue requirements of the INSURER and the applicable
insurance laws and regulations of the state or states in
which the AGENCY operates. Such laws and regulations
include, but are not limited to, those pertaining to
client funds, privacy and confidentiality, licensing,
unfair trade practices, rebating, replacements,
solicitation and advertising.
(x) The AGENCY agrees to inform the INSURER of all
material facts of which the AGENCY is aware relating to
insurance of insureds or proposed insureds.
(xi) The AGENCY agrees to train and exercise general
supervision over subagents.
b. Rejection of Subagent.
The INSURER may refuse for any reason, by written notice to the
AGENCY, to permit any subagent the right to solicit applications
for the sale of any of the Contracts. Upon receipt of such notice,
AGENCY immediately shall cause such subagent to cease such
solicitations of sales and cancel the appointment of any subagent
under this agreement.
c. Limitation of Authority.
(i) The AGENCY shall have no authority and agrees not to
bind the INSURER by any promise or agreement; incur any
debt, expense, or liability whatever in its name or
account; or receive any money due or to become due to the
INSURER except first premiums on applications or Contracts
and except where the INSURER otherwise agrees in writing.
(ii) The AGENCY shall have no authority and agrees not to
deliver any policy or allow any policy to be delivered
until the first premium has been paid in full. No delivery
shall take place if, after an inquiry, the AGENCY or
subagent is aware that any person proposed for insurance
is not in the same condition of health, habits, occupation
and other facts as are represented in the application.
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(iii) The AGENCY shall have no authority and agrees not to
make, modify or discharge any Contract, or bind the
INSURER by making any promises respecting any Contract,
except when authorized in writing to do so by an
authorized officer of the INSURER.
(iv) The AGENCY shall have no authority and agrees not to
authorize or allow a subagent to do any act prohibited
under this contract.
d. General Provisions.
(i) The AGENCY may not assign the rights to procure
applications or be relieved of the obligations of the
AGENCY under this Agreement without the INSURER'S prior
written consent.
(ii) The AGENCY shall be solely responsible for hiring any
staff the AGENCY may desire and for maintaining office
space and meeting necessary expenses without reimbursement
from the INSURER.
(iii) The AGENCY and its subagents shall be free to
exercise independent judgment as to the time, place and
means of performing all acts under this Agreement, and the
relationship of the AGENCY and its subagents to the
INSURER and ING AMERICA EQUITIES shall be that of an
independent contractor. Nothing in this Agreement shall be
construed to create the relationship of employer and
employee between the AGENCY (or any of its subagents) and
the INSURER or ING AMERICA EQUITIES.
(iv) The INSURER and the AGENCY recognize and respect each
other's interest in providing continuing service to those
who purchase Contracts. Each party agrees to provide the
others relevant information regarding the Contracts on a
reasonable basis, as done in the normal course of
business.
(v) Failure of the AGENCY or the INSURER to insist upon
strict compliance with any of the conditions of this
agreement shall not be construed as a waiver of any such
conditions.
(vi) No oral promises or representations shall be binding
nor shall this Agreement be modified except by agreement
in writing, executed on behalf of the INSURER and ING
AMERICA EQUITIES by a duly authorized officer of each of
them.
(vii) This Agreement supersedes all previous contracts and
agreements between the AGENCY and the INSURER made for the
procurement of variable products; but it shall not affect
any contract or agreement between the AGENCY and the
INSURER made for the procurement of non-variable insurance
products, or the economic obligations of either party on
existing policies which exist under any such previous or
continuing contracts or agreements.
(viii) The AGENCY hereby appoints SELLING BROKER-DEALER as
its attorney-in-fact, to execute any amendments,
modifications or waivers with respect to this Agreement.
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4. PROPERTY OF INSURER. All money payable in connection with any of the
Contracts, whether as premium, purchase payment or otherwise and
whether paid by or on behalf of any contract owner or anyone else
having an interest in the Contracts, is the property of the INSURER and
shall be transmitted immediately in accordance with the administrative
procedures of the INSURER without any deduction or offset for any
reason including, but not limited to, any deduction or offset for
compensation claimed by SELLING BROKER-DEALER or the AGENCY.
5. COMPENSATION. While this Agreement is in force, ING AMERICA EQUITIES
shall arrange for payment to SELLING BROKER-DEALER of compensation
payable on sales of the Contracts solicited in accordance with the
compensation schedules attached hereto as Schedules A and B, as in
effect at the time the Contract premiums or purchase payments (both
referred to as "Premiums") are received by the INSURER. Compensation to
the AGENCY and the Representative for Contracts solicited and sold by
the Representative shall be governed by an agreement between SELLING
BROKER-DEALER and its Representative, and to the extent deemed
necessary by the SELLING BROKER-DEALER, by an agreement between the
SELLING BROKER-DEALER and the AGENCY.
Upon termination of this Agreement, and so long as SELLING
BROKER-DEALER continues to be validly licensed and registered,
compensation shall continue to be paid to SELLING BROKER-DEALER in
accordance with the Compensation Schedules in effect at the time of
termination, for all Contracts issued prior to the termination date
through SELLING BROKER-DEALER. SELLING BROKER-DEALER shall also be
entitled to receive compensation for all new premium payments which are
in process at the time of termination, and shall continue to be liable
for any charge-backs pursuant to the provisions of the Compensation
Schedules in effect at the time of termination and for any other amount
advanced by or otherwise due the INSURER or ING AMERICA EQUITIES.
a) SELLING BROKER-DEALER represents that no commissions or
other compensation based upon a percentage of premiums or
based upon a percentage of assets or other valuable
consideration will be paid for services rendered in
soliciting the purchase of the Contracts by any person or
entity which is not duly licensed and registered by the
required authority and appointed by the INSURER to sell
the Contracts in the state of such solicitation or sale;
provided, however, that this representation shall not
prohibit the payment of compensation to the surviving
spouse or other beneficiary of a person entitled to
receive such compensation pursuant to a bona fide written
contract that calls for such payment. SELLING
BROKER-DEALER agrees that no compensation of any kind
other than described in this Section 5 of this Agreement
is payable by the INSURER or ING AMERICA EQUITIES to
SELLING BROKER-DEALER.
The amount of compensation, if any, and its time of payment for replacements,
changes, conversions, exchanges, term renewals, term conversions, premiums paid
in advance, policies issued on a "guaranteed issue" basis, or other special
cases and programs, shall be governed by the INSURER'S underwriting and
administrative rules then in effect .
The INSURER recognizes the Contract owners' right on issued Contracts to
terminate SELLING BROKER-DEALER and/or change a SELLING BROKER-DEALER, provided
that the Contract owner notifies ING AMERICA EQUITIES in writing. When a
Contract owner terminates SELLING BROKER-DEALER, no further compensation on any
payments due or received shall be payable to that SELLING BROKER-DEALER after
the notice of termination is received and accepted by ING AMERICA EQUITIES.
However,
(i) Any compensation already paid pursuant to
subparagraphs (I), (ii) or (iii) prior to ING AMERICA
EQUITIES' receipt and acceptance of such written request
shall not be affected;
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(ii) when a Contract owner designates a SELLING
BROKER-DEALER other than the SELLING BROKER-DEALER of
record, compensation on any payments due or received shall
be payable to the new SELLING BROKER-DEALER in accordance
with the Compensation Schedule in effect at the time of
issuance of the Contract;
(iii) A change of dealer authorization shall be honored
only if there exists a valid Selling Agreement between the
INSURER, ING AMERICA EQUITIES and the new SELLING
BROKER-DEALER or the NASD approves and effects a bulk
transfer of all representatives to a new SELLING
BROKER-DEALER.
6. TRAIL COMMISSIONS. For any Contracts for which a trail commission is
paid, such commission shall be credited on an annualized basis. Such
commissions shall be computed monthly as of the end of each policy
month as defined in the Contracts. The trail commission shall be
payable as specified in the applicable Compensation Schedule, on each
Contract anniversary at the end of the Contract year. Trail commission
shall be paid only if the Contract is in force on the date the trail
commission becomes payable. No trail commissions whatsoever may be
earned, paid, credited, or accrued in any way with respect to sales in
the State of New York.
7. REFUND OF COMPENSATION. No compensation shall be payable, and SELLING
BROKER-DEALER and AGENCY jointly and severally agree to reimburse ING
AMERICA EQUITIES promptly, and in any event within 30 days, for any
compensation paid to SELLING BROKER-DEALER or its Representatives under
each of the following conditions: a) if the INSURER, in its sole
discretion, determines not to issue the Contract applied for; b) if the
INSURER refunds the premiums or purchase payments upon the applicant's
surrender or withdrawal pursuant to any "free-look" privilege; c) if
the INSURER refunds the premiums or purchase payments paid by applicant
as a result of a complaint by applicant, recognizing that the INSURER
has sole discretion to refund Premiums; d) if the INSURER determines
that any person signing an application who is required to be licensed
or any other person or entity receiving compensation for soliciting
purchase of the Contracts is not duly licensed to sell the Contracts in
the jurisdiction of such sale or attempted sale; e) if a Contract is
surrendered, lapsed or exchanged, as provided in the Compensation
Schedule; and f) as otherwise provided in the Compensation Schedule.
8. INDEBTEDNESS AND RIGHT OF SETOFF. Nothing contained herein shall be
construed as giving SELLING BROKER-DEALER or Representative the right
to incur any indebtedness on behalf of the INSURER or ING AMERICA
EQUITIES. SELLING BROKER-DEALER hereby authorizes the INSURER and ING
AMERICA EQUITIES to set off liabilities, however created, of SELLING
BROKER-DEALER and Representative to the INSURER and ING AMERICA
EQUITIES against any and all amounts otherwise payable to SELLING
BROKER-DEALER
9. TERMINATION. This Agreement may not be assigned except by written
mutual consent and shall continue for an indefinite term, subject to
the termination by any party upon ten-days' advance written notice to
the other parties, except that in the event ING AMERICA EQUITIES or
SELLING BROKER-DEALER ceases to be a registered broker-dealer or a
member of the NASD, this Agreement shall immediately terminate. Upon
termination of the Agreement, all authorizations, rights and
obligations shall cease, except the provisions and agreements in
Sections 3, 7, 8, 12 and 13 and the payment of any accrued but unpaid
compensation to SELLING BROKER-DEALER or refund of compensation due to
ING AMERICA EQUITIES and the INSURER. Any AGENCY may terminate its
participation under this Agreement by giving 30 days' prior written
notice to the other parties, and the Agreement shall continue in force
with respect to all of the other parties, so long as one or more
AGENCIES continue to be a party. Upon termination of an Agency's
participation in the Agreement, all authorizations, rights and
obligations of that AGENCY shall cease, except the
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provisions and agreements in Sections 3, 7, 8, 12 and 13 and the refund
of compensation due to ING AMERICA EQUITIES and the INSURER.
10. NON-EMPLOYEE RELATIONSHIP. For the purpose of compliance with any
applicable federal or state securities laws or regulations, SELLING
BROKER-DEALER acknowledges and agrees that in performing the services
covered by this Agreement, it is acting in the capacity of an
independent "broker" or "dealer" as defined in the By-Laws of the NASD
and not as an agent or employee of the INSURER or ING AMERICA EQUITIES
or any registered investment company. In furtherance of its
responsibilities as a broker or dealer, SELLING BROKER-DEALER
acknowledges that it is responsible for statutory and regulatory
compliance in securities transactions involving any business produced
by its Representatives concerning the Contracts. The SELLING
BROKER-DEALER and its registered representatives shall be free to
exercise independent judgment as to the time, place and means of
performing all acts under this Agreement, and the relationship of the
SELLING BROKER-DEALER and its registered representatives to the INSURER
and to ING AMERICA EQUITIES shall be that of independent contractors.
Nothing in this Agreement shall be construed to create the relationship
of employer and employer between the SELLING BROKER-DEALER (or any of
its registered representatives) and the INSURER or ING AMERICA
EQUITIES.
11. NON-EXCLUSIVITY. SELLING BROKER-DEALER agrees that no territory or
product is assigned exclusively hereunder and that the INSURER and ING
AMERICA EQUITIES reserve the right in their discretion to enter into
Selling Agreements with other broker-dealers, and to contract with or
establish one or more insurance agencies in any jurisdiction in which
SELLING BROKER-DEALER transacts business hereunder.
12. CO-OPERATION IN INVESTIGATION. SELLING BROKER-DEALER, AGENCY, ING
AMERICA EQUITIES, and the INSURER jointly agree to cooperate fully in
any insurance, securities or other regulatory investigation or
proceeding or judicial proceeding arising in connection with any
Contract. Without limiting the foregoing:
a. SELLING BROKER-DEALER shall promptly notify the INSURER and ING
AMERICA EQUITIES of any customer complaint or notice of any
regulatory authority investigation or proceeding or judicial
proceeding which it might receive with respect to any Contract.
b. In the case of a substantive customer complaint, the parties shall
cooperate in investigating and responding to such complaint.
13. INDEMNIFICATION.
a. The INSURER and ING AMERICA EQUITIES (referred to jointly in this
Section 13 as "SLIC/INGAE") agree to indemnify and hold harmless
SELLING BROKER-DEALER and AGENCIES (referred to jointly in this
Section 13 as the "SELLING GROUP"), and such associated persons as
its officers, directors, agents, and employees, against any
losses, claims, damages or liabilities, joint or several, to which
SELLING GROUP or such associated persons may become subject under
the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact required to be stated therein
or necessary to make the statements therein not misleading
contained (I) in any Registration Statement, any prospectus or any
document executed by SLIC/INGAE specifically for the purpose of
qualifying a Contract for sale under the laws of any jurisdiction
or (ii) in any written information or sales material authorized
for and supplied or furnished to SELLING GROUP and agents or
Representatives by SLIC/INGAE, their employees or agents, in
connection with the sale of
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the Contract; B) failure by agents, Representatives or employees
of SLD to comply with federal or state law, regulation or ruling
or with any other applicable rules or regulation or with the
provisions of this Agreement; and C) grossly negligent,
intentional or fraudulent act, omission or error of SLD or its
agents, employees or Representatives in the issuing, sale or
servicing of the Contracts. SLIC/INGAE shall reimburse SELLING
GROUP and each such associated person for legal or other expenses
reasonably incurred by SELLING GROUP or such associated person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity provision shall be in
addition to any liability which SLIC/INGAE may otherwise have.
b. The SELLING GROUP jointly and severally agrees to indemnify and
hold harmless SLIC/INGAE, and their affiliates and such associated
persons as their officers, directors, agents and employees,
against any losses, claims, damages or liabilities joint or
severally to which SLIC/INGAE and any such associated person may
become subject under the 1933 Act, the 1934 Act or other federal
or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any unauthorized use of sales materials or any oral or
written misrepresentations (unless such misrepresentations
are contained in materials or other writings authorized,
supplied, or furnished by SLD) or any unlawful sales
practices concerning a Contract by the SELLING GROUP, its
officers, directors, employees, agents, Representatives or
associated persons; and
(ii) claims by agents or Representatives or employees of
the SELLING GROUP for commissions or other compensation or
remuneration of any type to the extent such compensation
or remuneration has been paid to the SELLING GROUP ; and
(iii) failure by agents, Representatives or employees of
the SELLING GROUP to comply with all applicable state
insurance laws and regulations including but not limited
to state licensing requirements, rebate statutes and
replacement regulations, and the provisions of this
Agreement; and
(iv) telephone instructions received by SLIC/INGAE from a
representative or Agent of the SELLING GROUP in connection
with any Contracts.
(v) any grossly negligent, intentional or fraudulent act,
omission or error of SELLING GROUP or its agents,
employees or Representatives in the solicitation, sale or
servicing of the Contracts.
The SELLING GROUP shall reimburse SLIC/INGAE and any director,
officer, employee or agent for any legal or other expenses
reasonably incurred by SLIC/INGAE or such associated person in
connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity provision shall be in
addition to any liability which the SELLING GROUP may otherwise
have.
c. After a party entitled to indemnification receives notice of the
commencement of any action, if a claim in respect thereof is to be
made against any person obligated to provide indemnification, such
indemnified party shall notify the indemnifying party in writing
of the
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commencement thereof as soon as practicable thereafter. However,
the omission to so notify the indemnifying party shall not relieve
it from any liability except to the extent that the omission
results in a failure of actual notice to the indemnifying party,
and such indemnifying party is damaged solely as a result of the
failure to give such notice.
14. FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE. SELLING BROKER-DEALER
shall secure and maintain a fidelity bond (including coverage for
larceny and embezzlement), issued by a reputable bonding company,
covering all of its directors, officers, agents, Representatives,
associated persons and employees who have access to funds of the
INSURER or ING AMERICA EQUITIES. This bond shall be maintained at
SELLING BROKER-DEALER's expense in at least the amount prescribed under
Rule 3020 of the NASD Conduct Rules or future amendments thereto.
SELLING BROKER-DEALER shall provide ING AMERICA EQUITIES with a copy of
said bond or verification of an applicable exception before executing
this Agreement. AGENCY shall insure that its representatives secure and
maintain errors and omissions insurance acceptable to the INSURER and
covering Representatives. SELLING BROKER-DEALER hereby assigns any
proceeds received from a fidelity bonding company, errors and omissions
or other liability coverage, to the INSURER or ING AMERICA EQUITIES as
their interest may appear, to the extent of their loss due to
activities covered by the bond, policy or other liability coverage and
to the extent that INSURER or ING AMERICA EQUITIES is entitled to
indemnification pursuant to this Agreement . If there is any deficiency
amount, whether due to a deductible or otherwise, SELLING BROKER-DEALER
shall promptly pay such amounts on demand to the extent that INSURER or
ING AMERICA EQUITIES is entitled to indemnification pursuant to this
Agreement. SELLING BROKER-DEALER hereby indemnifies and holds harmless
the INSURER and ING AMERICA EQUITIES from any such deficiency and from
the costs of collection thereof, including reasonable attorneys' fees.
15. NOTICES. All notices to the INSURER or ING AMERICA EQUITIES should be
mailed to:
ING America Equities
Attn: Chief Legal Officer
0000 Xxxxxxxx
Xxxxxx, XX 00000
All notices to SELLING BROKER-DEALER shall be duly given if mailed to:
-----------------------------
-----------------------------
-----------------------------
All notices to AGENCIES shall be duly given if mailed to:
-----------------------------
-----------------------------
-----------------------------
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16. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado. The
parties agree that the District Court for the City and County of
Denver, Colorado shall have jurisdiction and be the appropriate venue
for any required judicial interpretation and enforcement of this
Agreement.
17. AMENDMENT OF AGREEMENT. The INSURER or ING AMERICA EQUITIES may amend
this Agreement, including any Exhibit hereto, upon at least ten (10)
days' prior written notice to SELLING BROKER-DEALER. The submission of
an application for the Contracts by SELLING BROKER-DEALER after the
effective date of any such amendment shall constitute agreement to such
amendment. Additional AGENCIES may be added as parties to this
Agreement at any time by a written amendment signed by the INSURER, ING
AMERICA Equities, SELLING BROKER-DEALER and such additional AGENCIES.
All AGENCIES which are parties to this Agreement at the time of such
amendment hereby consent and agree in advance to the addition of such
additional AGENCIES.
18. BINDING EFFECT, SEVERABILITY. This Agreement shall be binding on and
shall inure to the benefit of the parties to it and their respective
successors in interest. If any provision of the Agreement conflicts
with any other provision, or if any provision shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
19. EXECUTION IN COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken
together will constitute one and the same instrument.
20. EFFECTIVE DATE; MERGER; ENTIRE AGREEMENT. This Agreement shall be
effective as of the date it is fully executed by all parties. This
Agreement, including all Exhibits hereto, constitutes the entire
Agreement between the parties and supersedes in its entirety any and
all previous agreements among the parties with respect to the
Contracts.
21. YEAR 2000 COMPLIANCE. Each of SELLING BROKER-DEALER, the AGENCIES,
INSURER and ING AMERICA EQUITIES represents, warrants and covenants
that any services, computer systems and software used by it to fulfill
its obligations to Contract owners, governmental and self-regulatory
organizations and each other under the terms of this Agreement are
currently "Year 2000 Compliant." For purposes of this Agreement "Year
2000 Compliant" means fault-free performance in the processing of date
and date-related data (including, but not limited to, calculating,
comparing and sequencing) by such computer systems and/or software.
SELLING BROKER-DEALER and Agency shall indemnify and hold INSURER and
ING AMERICA EQUITIES harmless from and against any damages, losses,
liabilities, judgments, settlements, costs and expenses of any nature
whatsoever (including reasonable attorneys' fees and court costs) or
causes of action asserted by anyone, resulting from any breach of the
above representation, warranty and covenant or any claim resulting
therefrom. INSURER and ING AMERICA EQUITIES shall indemnify and hold
SELLING BROKER-DEALER, the AGENCIES and the Representatives harmless
from and against any damages, losses, liabilities, judgments,
settlements, costs and expenses of any nature whatsoever (including
reasonable attorneys' fees and court costs) or causes of action
asserted by anyone, resulting from any breach of the above
representation, warranty and covenant or any claim resulting therefrom.
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In reliance on the representations set forth and in consideration of the
undertakings described, the parties represented below do hereby contract and
agree.
SOUTHLAND LIFE INSURANCE COMPANY ING AMERICA EQUITIES, INC.
By: By:
--------------------------------- --------------------------------
Date: Date:
------------------------------- ------------------------------
SELLING BROKER-DEALER: AGENCY:
By: By:
--------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------ -----------------------------
Date: Date:
------------------------------- ------------------------------
ADDITIONAL AGENCIES (IF ANY)
Agency: Agency:
-------------------------------- ---------------------------
By: By:
------------------------------------ --------------------------------
Title: Title:
--------------------------------- -----------------------------
Date: Date:
---------------------------------- -----------------------------
Agency: Agency:
-------------------------------- ---------------------------
By: By:
------------------------------------ --------------------------------
Title: Title:
--------------------------------- -----------------------------
Date: Date:
---------------------------------- ------------------------------
Agency: Agency:
-------------------------------- ---------------------------
By: By:
------------------------------------ --------------------------------
Title: Title:
--------------------------------- -----------------------------
Date: Date:
---------------------------------- ------------------------------
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