SELLING AND SERVICES AGREEMENT AND FUND PARTICIPATION AGREEMENT
Exhibit 24(b)(8.4) | |
SELLING AND SERVICES AGREEMENT | |
AND | |
FUND PARTICIPATION AGREEMENT | |
THIS AGREEMENT, made and entered into as of this 27th day of June, 2008 by and | |
among ING Life Insurance and Annuity Company ("ING Life"), ING Financial Advisers, LLC | |
("ING Financial") (collectively, "ING"), American Beacon Advisors, Inc. (“Advisor”), acting as | |
investment manager for the registered open-end management investment companies, listed in | |
Exhibit III (each a "Fund" or collectively the "Funds"), and Foreside Fund Services, LLC, a | |
Delaware limited liability company (“Distributor”), acting as the principal underwriter of Fund | |
shares. | |
WHEREAS, Advisor is a registered investment advisor under the Investment Advisers Act | |
of 1940, as amended, and acts as investment manager for the Funds; and | |
WHEREAS, Distributor is a registered broker-dealer under the federal Securities and | |
Exchange Act of 1934, as amended, a member of the National Securities Clearing Corporation | |
(“NSCC”) and acts as principal underwriter for the Funds; and | |
WHEREAS, ING Life is an insurance company that issues annuity contracts to, and/or | |
provides 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 and funding agreements | |
issued by ING Life (the "Contracts"); and | |
WHEREAS, ING Life has established separate accounts: Variable Annuity Accounts B, C, | |
F, I and Separate Account D 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 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. | ||
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 by the Fund for those Plan assets directed for | ||
investment directly in the Fund, and a single omnibus account held in the name of ING Life shall | ||
be maintained by the Fund for those Plan assets directed for investment in the Fund through the | ||
Contracts (collectively, the "Accounts.") ING Life as issuer of the Contracts or as service agent | ||
for the Plans, shall facilitate purchase and sale transactions with respect to the Accounts in | ||
accordance with the Agreement. | ||
3. | Services to be Performed by ING. | |
ING may be responsible for performing shareholder account servicing functions, which | ||
shall include without limitation: | ||
(a) | making the funds available under the Contracts or other arrangements offered by | |
ING; | ||
(b) | assisting in processing Contract owner, Plan, Plan Representative, or Participant | |
purchase and redemption requests; | ||
(c) | answering Contract owner, Plan, Plan Representative, or Participant inquiries | |
regarding account status and history; | ||
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(d) | assisting Contract owners, Plans, Plan Representatives, or Participants in |
designating and changing dividend options, account designations and addresses; | |
(e) | adopting and maintaining appropriate security measures for identifying Contract |
owners, Plans, Plan Representatives, or Participants; | |
(f) | providing periodic statements showing a Contract owner's, Plan's, Plan |
Representative's, or Participant's account balances and, to the extent practicable, | |
integration of such information with other customer transactions otherwise | |
effected with or through the ING; | |
(g) | furnishing (either separately or on an integrated basis with other reports sent to a |
Contract owner, Plan, Plan Representative, or Participant by ING) statements and | |
confirmations of all purchases and redemption requests as may be required by | |
agreement between ING and the Contract owners, Plans, Plan Representatives, or | |
Participants; | |
(h) | processing Contract owner, Plan, Plan Representative, or Participant purchase |
and redemption requests for Shares and placing purchase and redemption | |
instructions with the Funds’ transfer agent, including any designee thereof, | |
(“Transfer Agent”) in the manner described in Section 6 hereof; | |
(i) | providing subaccounting services and maintaining accurate subaccounting records |
regarding Shares beneficially owned by Contract owners, Plans, Plan | |
Representatives, or Participants; | |
(j) | maintaining and updating Contract owner, Plan, Plan Representative, or |
Participant records to reflect dividend payments; | |
(k) | transmitting proxy statements, annual and semi-annual reports, the Funds’ then |
current prospectuses (in each case, the “Prospectus”) and other communications | |
from the Funds to Contract owners, Plans, Plan Representatives, or Participants | |
as may be required by law and by agreement between ING and the Contract | |
owners, Plans, Plan Representatives, or Participants; and | |
(l) | providing such other related services upon which the Advisor and ING may |
mutually agree. | |
ING shall provide all personnel, facilities and equipment reasonably necessary in order for it to | |
perform the functions described in this paragraph with respect to Contract owners, Plans, Plan | |
Representatives, or Participants. ING shall exercise reasonable care in performing all such | |
services. | |
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4. | Pricing Information, Orders, Settlement. |
(a) Distributor will make shares available to be purchased by the Nominee or by ING Life, | |
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, provided, however, | |
that the Board of Trustees of the Fund (hereinafter the "Trustees") may upon reasonable notice to | |
ING, refuse to sell shares of any Funds to any person, or suspend, or terminate the offering of | |
any shares of Funds if such action is required by law or by regulatory authorities having | |
jurisdiction or is, in the sole discretion of the Trustees, acting in good faith and in the best | |
interests of the shareholders of the Fund shares and is acting in compliance with their fiduciary | |
obligations under federal and/or any applicable state laws. | |
(b) Advisor 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 (normally 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 or any day on which the Fund calculates its net asset | |
value pursuant to the rules of the Securities and Exchange Commission and the Fund’s | |
prospectus ("Business Day") 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. Advisor shall | |
provide or cause to be provided to ING Financial such information by 7:00 p.m., East Coast | |
time. If Advisor is unable to provide ING such information by 7:00 p.m., East Coast time, | |
Advisor will communicate by phone and/or e-mail with ING, as soon as reasonably practicable | |
upon learning of such inability, regarding the estimated time such data will be available and | |
transmitted. In such event, Advisor will continue to communicate by phone and/or e-mail with | |
ING until it has verified that the data is received by ING. So long as Advisor communicates and | |
follows these procedures in good faith, the indemnification provisions in 4(i) regarding late | |
reporting or timely data will not be triggered. | |
(c) ING Financial, as agent for the Funds solely for the purposes expressed herein shall | |
receive from Contract owners, Plan Representatives or Participants for acceptance as of the | |
Close of Trading on each Business Day 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 ING Life on behalf of its Separate Accounts ("Instructions"). In | |
addition, ING Financial shall (i) transmit to the Funds’ Transfer Agent such Instructions no later | |
than 9:00 a.m., East Coast time on the next following Business Day, and (ii) 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 (“Trade Date”). Instructions received in | |
proper form by ING Financial and time stamped after the Close of Trading on any given | |
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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 the Funds’ |
Transfer Agent 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 the Funds’ Transfer Agent, as soon as possible, but in any event no later than 4:00 |
p.m., East Coast time on the same Business Day after the Trade Date. |
(e) The Funds’ Transfer Agent 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, but in any event no later than 4:00 p.m. East Coast time on the |
next Business Day on which such purchase orders are made by ING in conformance with Section |
4(c). |
(f) In lieu of applicable provisions set forth in paragraphs 4(c) through 4(e) above, the |
Funds' Transfer Agent and ING may agree to 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. In addition, ING and Advisor may also provide or cause to be provided pricing |
information in accordance with Exhibit I. |
(g) Upon Advisor’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 Advisor 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 Advisor, the Funds Transfer Agent 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 Advisor, |
the Funds’ Transfer Agent, 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 the |
Funds’ Transfer Agent, and ING Financial will immediately pay such loss to Advisor, the Funds’ |
Transfer Agent, Distributor or such Fund upon ING Financial’s receipt of written notification, |
with supporting data. |
(i) Advisor 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 |
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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 Advisor. In addition, Advisor 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. 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) Advisor and ING shall each 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 Advisor agree to maintain reasonable errors and | |
omissions insurance coverage commensurate with each party’s respective responsibilities under | |
this Agreement. | |
5. | Servicing Fees. |
The provision of shareholder and administrative services to Contract owners or to the Plans | |
shall be the responsibility of ING Financial, ING Life or the Nominee and shall not be the | |
responsibility of Distributor or Advisor. The Nominee, or ING Life on behalf of its Separate | |
Accounts, will be recognized as the sole shareholder 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, | |
Advisor agrees to pay to ING Life a servicing fee as set forth in Exhibit III – Funds and Fees, | |
attached hereto. Advisor will make such payments to ING Life 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 ING Life for the quarter and such other supporting data as may | |
be reasonably requested by ING Life. If required by a Plan or by applicable law, ING Life may | |
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 Advisor to offset other fees payable by the Plan to ING Life. | |
ING Life acknowledges that Advisor is not a party to such allocation and ING Life represents to | |
Advisor that any allocation it undertakes will be done in accordance with applicable laws.” | |
6. | 12b-1 Fees. |
To compensate ING Financial for its distribution of Fund Shares, Advisor shall make | |
quarterly payments to ING Financial as set forth in Exhibit III - Funds and Fees, attached hereto. | |
Advisor will make such payments to ING Financial 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 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 may allocate to a Plan or to Participant accounts in a Plan all or a portion of such 12b-1 | |
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fees, or to use 12b-1 fees it collects from Advisor to offset other fees payable by the Plan to ING | |
Financial. ING Financial acknowledges that Advisor is not a party to such allocation and ING | |
Financial represents to Advisor that any allocation it undertakes will be done in accordance with | |
applicable law.” | |
7. | Expenses. |
ING may provide information to the Funds designated mailing agent for distribution of | |
certain Fund related materials to Contract owners, Plans, Plan Representatives or Participant. | |
Alternatively, if ING acts as mailing agent for distribution of such materials, Advisor shall make | |
available for reimbursement certain out-of-pocket expenses ING Life incurs in connection with | |
providing shareholder services to Contract owners or the Plans. These expenses include printing | |
costs and actual postage paid by ING Life in connection with mailing updated prospectuses, | |
supplements, information statements, financial reports, and proxies to Contract owners, Plans, | |
Plan Representatives or Participants for which ING Life provides shareholder services | |
hereunder, so long as such costs and expenses do not exceed the amounts that Advisor would | |
have expended by sending all such materials through its shareholder mailing agent. Advisor will | |
reimburse ING's costs and expenses for the aforementioned mailings up to the amount it would | |
have expended. If ING's mailings are consolidated such that they include information not related | |
to the Funds, Advisor will only reimburse the proportional postage. Except as otherwise agreed | |
in writing, ING shall bear all other expenses incidental to the performance of the services | |
described herein. Advisor 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. | |
8. | Termination. |
This Agreement shall terminate as to the maintenance of the Account: | |
(a) At the option of either ING Life, ING Financial or Advisor upon one-hundred and | |
twenty (120) days’ advance written notice to the other parties; | |
(b) At the option of ING Life 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, Advisor or Distributor, upon institution of | |
formal disciplinary or investigative proceedings against ING Financial, Advisor, Distributor or | |
the Funds by the Financial Industry Regulatory Authority (“FINRA”), SEC, or any other | |
securities regulatory body; | |
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(d) At the option of Advisor or Distributor, if Advisor or 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 Advisor; written notice of such termination shall be promptly furnished to ING; | |
(f) Upon the determination of ING Life to substitute for the Fund’s shares the shares of | |
another investment company in accordance with the terms of the applicable Contracts. ING Life | |
will give 60 days’ written notice to the Fund, Advisor and 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 ING Life may | |
assign, without consent of Advisor or Distributor, their respective duties and responsibilities | |
under this Agreement to any of their affiliates (which shall mean any person or entity that | |
controls, is controlled by, or is under common control with ING Financial and ING Life, | |
respectively), and provided, further, that ING Financial or ING Life may enter into subcontracts | |
with other dealers for the solicitation of sales of shares of the Funds without the consent of | |
Advisor or Distributor, 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. | |
9. | Continuation of Agreement. |
Termination as the result of any cause listed in Section 8 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. For avoidance of | |
doubt, servicing fee will continue to be payable under the terms in section 5 (Servicing Fees) | |
after the termination, for as long as fund assets are held through the Contracts or through ING | |
Life’s arrangement with Plans. | |
10. | Advertising and Related Materials. |
(a) Advertising and sales 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 Advisor for review | |
and such material shall not be used with the general public or any Contract owner, Plan, Plan | |
Representative, or Participant without prior approval from Advisor or Distributor. Advisor shall | |
use its reasonable best efforts to advise the submitting party in writing within five (5) calendar | |
days of receipt of such materials of its approval or disapproval of such materials; provided, | |
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however, that Advisor’s failure to do so shall not mean that Advisor has approved such material. | |
ING Financial shall approve and file such material with FINRA, as required. | |
(b) Advisor 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. Advisor will also provide to ING an electronic copy of all prospectuses, statements | |
of additional information, annual and semiannual reports, and all amendments or supplements | |
suitable for posting on ING's websites at Advisor’s discretion. | |
(c) Advisor will provide via Excel spreadsheet in an electronic transmission to ING at | |
least quarterly the ten largest portfolio holdings necessary to update Fund profiles within fifteen | |
calendar days following the end of each quarter. | |
11. | Proxy Voting. |
ING or the Nominee will distribute to Contract owners, Plan Representatives or | |
Participants all proxy materials furnished by Advisor 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. | |
12. | Indemnification. |
(a) ING agrees to indemnify and hold harmless the Funds, Advisor, 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, Advisor, 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 services by ING, the Nominee, their affiliates, or subcontracted dealers | |
under this Agreement, or (ii) result from its breach of a material provision of this Agreement. | |
ING will reimburse any legal or other expenses reasonably incurred by the Funds, Advisor or | |
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 the Funds, Advisor or 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 ING | |
Life, the Nominee and each of their directors, officers, employees, agents and each person, if | |
any, who controls ING Financial and ING Life and the Nominee within the meaning of the 1933 | |
Act against any losses, claims, damages or liabilities to which ING Financial or ING Life, the | |
Nominee, or any such director, officer, employee, agent or controlling person may become | |
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subject, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) result |
from its breach of a material provision of this Agreement. Distributor will reimburse any legal |
or other expenses reasonably incurred by ING Financial or ING Life, 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 |
ING Life, 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) Advisor agrees to indemnify and hold harmless each of ING Financial and ING Life, |
the Nominee and each of their directors, officers, employees, agents and each person, if any, who |
controls ING Financial and ING Life and the Nominee within the meaning of the1933 Act |
against any losses, claims, damages or liabilities to which ING Financial or ING Life, 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 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 its breach of a material provision of this |
Agreement. Advisor will reimburse any legal or other expenses reasonably incurred by ING |
Financial or ING Life, 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 ING Life, the Nominee or their respective |
directors, officers, employees, agents, or any controlling person herein defined in the |
performance of their obligations under this Agreement. |
(d) 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 12. 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 12 for any legal or other expenses subsequently incurred by |
such indemnified party in connection with the defense thereof other than reasonable costs of |
investigation. |
No party to this Agreement shall be liable to any other party for consequential, special or indirect |
damages under any provision of this Agreement. |
This section shall survive after termination of this agreement. |
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13. | Representations and Warranties. | ||
(a) Representations of ING Life. ING Life represents and warrants: | |||
(i) | that it (1) is a life insurance company organized under the laws of the State | ||
of Connecticut, (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 its 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. | |||
(ii) | that to the extent ING Life enters into subcontracts with dealers for the | ||
solicitation of sales of shares of the Funds, ING Life has determined that they are qualified and | |||
capable of performing these services and has taken and will continue to take such measures as it | |||
deems necessary to ensure that these dealers perform such services in accordance with this | |||
Agreement. The appointment of such dealers does not relieve ING Life of its duties under the | |||
Agreement. | |||
(b) | Representations of ING Financial. ING Financial represents and warrants: | ||
(i) that it (1) is a member in good standing of the FINRA, (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 ING Life in shares of | |||
investment companies or other investment vehicles specified by Plan Representatives or | |||
Participants; | |||
(iv) that it will not, without the written consent of Advisor, 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 Advisor; and | |||
11 |
(v) that to the extent ING Financial enters into subcontracts with dealers for the |
solicitation of sales of shares of the Funds, ING Financial has determined that they are qualified |
and capable of performing these services and has taken and will continue to take such measures |
as it deems necessary to ensure that these dealers perform such services in accordance with this |
Agreement. The appointment of such dealers does not relieve ING Financial of its duties under |
the Agreement. |
(c) Representations of Distributor. Distributor represents and warrants: |
(i) that Distributor (1) is a member in good standing of FINRA, (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 |
(ii) that the 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 items 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. |
(d) Representations of Advisor. Advisor represents and warrants on its behalf and on |
behalf of the Funds: |
(i) that the Funds (1) are duly organized as a business trust in the state of |
Massachusetts, (2) are in good standing in such jurisdictions. (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 Funds 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 Advisor will notify ING Financial and ING Life |
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) Advisor (1) is a registered investment advisor under the Investment Advisers |
Act of 1940, as amended, and (2) will continue to be so registered during the term of this |
Agreement; and |
12 |
(v) that Advisor (1) is a corporation 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 | ||
14. | Governing Law and Arbitration. | |
This Agreement and all the rights and obligations of the parties shall be governed by and | ||
construed under the laws of the State of New York without giving effect to the principles of | ||
conflicts of laws and the provisions shall be continuous. In the event of a dispute with respect to | ||
this Agreement that the parties are unable to resolve themselves, such dispute will be settled by | ||
arbitration before arbitrators sitting in the Borough of Manhattan, New York, New York, in | ||
accordance with the then existing procedures of the American Arbitration Association, provided, | ||
however, that in the event an aggrieved party reasonably believes that there is a possibility it will | ||
suffer immediate and irreparable harm, such party may seek emergency and/or injunctive relief | ||
in a court of competent jurisdiction. However, nothing in this paragraph should be construed to | ||
constitute a waiver of the parties' rights and obligations to arbitrate regarding matters other than | ||
those specifically addressed in this paragraph. | ||
15. | 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) | Anti-Money Laundering. Each of the parties to this Agreement will establish and | |
maintain programs, policies and procedures as required by applicable federal, state or local law | ||
to detect and prevent money laundering. Each party shall cooperate with the others to the extent | ||
required by law to facilitate implementation of each other's anti-money laundering (AML) | ||
program, which may include annual AML compliance certifications, periodic AML due | ||
diligence reviews and/or other requests deemed necessary to ensure compliance with the AML | ||
regulations. | ||
(c) | Restrictions on "Excessive Trading." ING has adopted its own excessive trading | |
policy, a copy of which is attached as Exhibit II (“Market Timing Policy”). ING does not | ||
monitor trading in fund shares on behalf of, or in accordance with disclosed policies of, any fund | ||
groups; however, ING monitors individual Participant and Contract owner trading in accordance | ||
with its Market Timing Policy. ING will use its best efforts, and shall reasonably cooperate with | ||
the Advisor and the Funds, to enforce both its Market Timing Policy and stated policies in a | ||
Fund’s currently effective Prospectus or Statement of Additional Information regarding | ||
transactions in Fund shares, including those related to market timing and excessive trading. The | ||
Funds, Advisor and the Funds’ Transfer Agent shall each have access to (i) Participant account | ||
numbers, (ii) an investment professional identifier, and (iii) tax identification numbers on | ||
transactions and the amounts and dates of those transactions transmitted by ING to advisor or the | ||
13 |
Funds Transfer Agent. ING will execute any instructions from the Advisor or the Funds to |
restrict or prohibit further purchases or exchanges of Fund shares by an individual participant or |
Contract owner who has been identified by the Funds as having engaged in transactions in Fund |
shares that violate market timing policies established by the Funds. Moreover, ING agrees that it |
will use its best efforts to determine whether a Participant is itself a financial intermediary as that |
term is defined in Rule 22c-2 of the 1940 Act, as amended (a “Financial Intermediary”). In |
addition, ING will use its best efforts to furnish Advisor and the Funds with the above |
information about other shareholders who hold an account with such Financial Intermediary. |
ING, Advisor and the Funds shall use their best efforts, and shall reasonably cooperate with each |
other to prevent future market timing and frequent trading. |
(d) 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 Financial/ING: |
ING Financial Advisers, LLC/ING Life Insurance and Annuity Company |
000 Xxxxxxxxxx Xxxxxx, XX00 |
Xxxxxxxx, XX 00000 |
Attention: Xxxxxxx Xxxxxxxx (000) 000-0000 |
Worksite Investment Products |
To Advisor: |
American Beacon Advisors, Inc. |
0000 Xxxx Xxxxxx Xxxx., XX 2450 |
Xxxx Xxxxx, XX 00000 |
Attn: President |
To Distributor: |
Foreside Fund Services, LLC |
Xxx Xxxxxxxx Xxxxxx |
Xxxxxxxx, XX 00000 |
Attn: Chief Compliance Officer |
Any notice, demand or other communication given in a manner prescribed in this Subsection (b) |
shall be deemed to have been delivered on receipt. |
(e) 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. |
14 |
(f) 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. |
(g) 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. |
(h) Entire Agreement. This Agreement constitutes the entire agreement and |
understanding between the parties hereto relating to the subject matter hereof, and supersedes all |
prior agreement and understanding 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/ Xxxxx X. Xxxxxx |
Name Xxxxx X. Xxxxxx |
Title VP |
ING FINANCIAL ADVISERS, LLC |
By /s/ Xxxxx X. Xxxxxx |
Name Xxxxx X. Xxxxxx |
Title COO/VP |
AMERICAN BEACON ADVISORS, INC. |
By /s/ Xxxxx X. Xxxxx |
Name Xxxxx X. Xxxxx |
Title VP Sales |
FORESIDE FUND SERVICES, LLC |
By /s/ Xxxxxxx X. Xxxxx |
Name Xxxxxxx X. Xxxxx |
Title Chief Compliance Officer |
Foreside Fund Services, LLC |
15 |
Schedule A |
For any additional separate accounts |
16 |
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 4(f) of the Selling and Services Agreement and Fund Participation |
Agreement, Advisor, the Funds Transfer Agent or the Funds hereby agree to provide pricing |
information, execute orders and wire payments for purchases and redemptions of Fund shares |
through NSCC and its subsidiary systems as follows: |
(a) Advisor, the Funds Transfer Agent or the Funds will furnish to ING Financial or its affiliate |
through NSCC’s Mutual Fund Profile System ("MFPS") as well as via fax directly to ING at |
000-000-0000 (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. Advisor shall provide or cause to be provided to ING |
Financial such information by 7:00 p.m., East Coast time on each business day that the New |
York Stock Exchange is open for business or any day on which the Fund calculates its net |
asset value pursuant to the rules of the Securities and Exchange Commission and the Fund’s |
prospectus ("Business Day"). If Advisor is unable to provide ING such information by 7:00 |
p.m., East Coast time, Advisor will communicate by phone and/or e-mail with ING, as soon |
as reasonably practicable upon learning of such inability, regarding the estimated time such |
data will be available and transmitted. In such event, Advisor will continue to communicate |
by phone and/or e-mail with ING until it has verified that the data is received by ING. So |
long as Advisor communicates and follows these procedures in good faith, the |
indemnification provisions in 4(i) regarding late reporting or timely data will not be |
triggered. 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. Eastern 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 Advisor, the Funds’ Transfer |
Agent 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 |
17 |
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 will 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 no later than 5:00 p.m. Eastern 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 will 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 5:00 p.m. | |
Eastern 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 Advisor or the Funds’ Transfer Agent 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 the Funds’ Transfer Agent 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 the | |
Funds’ Transfer Agent or to ING Financial or its affiliate, as applicable, as is otherwise | |
provided in Section 4 of 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, the Funds’ Transfer Agent, clearing agents (if applicable), |
and agents of the Fund 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. | |
18 |
EXHIBIT II


EXHIBIT III | ||
FUNDS & FEES | ||
Name of Fund | CUSIP | Fund Symbol |
American Beacon Funds-Institutional Class | ||
Balanced Fund | 00000X000 | AADBX |
Large Cap Value Fund | 00000X000 | AADEX |
Large Cap Growth Fund | 00000X000 | ALCGX |
Mid-Cap Value Fund | 00000X000 | AACIX |
*Small Cap Value Fund | 00000X000 | AVFIX |
Small Cap Value Opportunity Fund | 00000X000 | ASOIX |
International Equity Fund | 00000X000 | AAIEX |
Emerging Markets Fund | 00000X000 | AEMFX |
S&P 500 Index Fund | 00000X000 | AASPX |
Small Cap Index Fund | 00000X000 | ASCIX |
International Equity Index Fund | 00000X000 | AIIIX |
High Yield Bond Fund | 00000X000 | AYBFX |
Intermediate Bond Fund | 00000X000 | AABDX |
Short-Term Bond Fund | 00000X000 | AASBX |
Treasury Inflation Protected Securities Fund | 00000X000 | ATPIX |
American Beacon Funds-PlanAhead Class | ||
Balanced Fund | 00000X000 | AABPX |
Emerging Markets Fund | 00000X000 | AAEPX |
Enhanced Income Fund | 00000X000 | AANPX |
High Yield Bond Fund | 00000X000 | AHYPX |
International Equity Fund | 00000X000 | AAIPX |
Large Cap Value Fund | 00000X000 | AAGPX |
Mid-Cap Value Fund | 00000X000 | AMPAX |
Money Market Fund | 00000X000 | APAXX |
S&P 500 Index Fund | 00000X000 | AAFPX |
Short-Term Bond Fund | 00000X000 | AALPX |
*Small Cap Value Fund | 00000X000 | AVPAX |
Small Cap Value Opportunity Fund | 00000X000 | ASOPX |
U.S. Government Money Market Fund | 00000X000 | AUPXX |
American Beacon Funds-Service Class | ||
Balanced Fund | 00000X000 | ABLSX |
International Equity Fund | 00000X000 | AAISX |
Large Cap Value Fund | 00000X000 | AVASX |
Mid-Cap Value Fund | 00000X000 | AMCSX |
*Small Cap Value Fund | 00000X000 | AASSX |
*Closed to new investors. | ||
21 |
The Advisor shall pay ING a fee with respect to each Fund, calculated by the Advisor | |||
and paid quarterly, equal to the applicable amount set forth below per annum of the average daily | |||
net asset value of the Shares of such Fund that are held on behalf of the Contract owners in an | |||
Account for which ING is providing Services under this Agreement. No fee shall be paid with | |||
respect to Shares first placed or purchased after termination of this Agreement with respect to | |||
such Fund. | |||
Funds | Service Fee | 12b-1 Fee | Total Fee |
American Beacon Funds-Institutional Class | % | % | % |
American Beacon Funds-PlanAhead Class | % | % | % |
American Beacon Funds - Service Class | % | % | % |
22 |