ASSIGNMENT AND RULE 22C-2 AGREEMENT
Exhibit 99-B.8.43
ASSIGNMENT AND
RULE 22C-2 AGREEMENT
This AGREEMENT, dated no later than April 16, 2007, is effective as of the 16th day of
October, 2007, between Professional Funds Distributor, LLC (PFD) as principal underwriter for
each of the funds listed on the attached Schedule A (the “Funds”) and ING Life Insurance and
Annuity Company, ING National Trust, ING USA Annuity and Life Insurance Company,
ReliaStar Life Insurance Company, ReliaStar Life Insurance Company of New York, Security
Life of Denver Insurance Company and Systematized Benefits Administrators Inc. (individually
an “Intermediary” and collectively the “Intermediaries”).
WHEREAS, the Intermediaries have adopted policies and procedures to monitor and deter
excessive trading activity within the mutual funds, including the Funds, available through the
variable annuity, variable life insurance and variable retirement plan products which they offer
(the “Variable Products”); and
WHEREAS, the Intermediaries’ policies and procedures to monitor and deter excessive trading
activity within the mutual funds available through their Variable Products are attached hereto
and made part of this Agreement as Schedule B (the “Excessive Trading Policy”);
WHEREAS, PFD seeks to assign all of its rights and obligations under the Fund Participation
Agreement (“Agreement”) with the Funds to PFPC Distributors, Inc. (“PFPC”) and PFPC and
the Funds desire for the Intermediaries to monitor and deter excessive trading activity in the
Funds in accordance with the Intermediaries’ Excessive Trading Policy; and
WHEREAS, the parties desire to otherwise comply with the requirements under Rule 22c-2 of
the Investment Company Act of 1940, as amended (“Rule 22c-2”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, the parties hereby agree as follows:
A. Assignment of Agreement.
1. Effective _____________, PFD does hereby assign all of its rights, obligations,
and interests under the Agreement to PFPC and PFPC does hereby assume all of PFD’s
rights, duties and obligations arising under the Agreement.
B. Agreement to Monitor and Deter Excessive Trading Activity.
1. The Intermediaries agree to monitor and deter excessive trading activity in the
Funds which are available through their Variable Products in accordance with the Intermediaries’
Excessive Trading Policy. Said Excessive Trading Policy may be amended from time to time
with the consent of the parties, which consent will not be unreasonably withheld.
2. The Intermediaries agree to provide the Funds with the taxpayer identification
number (“TIN”), if requested, or any other identifying factor that would provide acceptable
assurances of the identity of all shareholders that are restricted to regular U.S. mail trading under
the Intermediaries’ Excessive Trading Policy.
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| C. | Agreement to Provide Shareholder Information. |
| 1. Each Intermediary agrees to provide the Funds, upon written request, the | |
following shareholder information with respect to Covered Transactions involving the Funds:
| a. | The taxpayer identification number (“TIN”) or any other government issued identifier, if known, that would provide acceptable assurances of the identity of each shareholder that has purchased, redeemed, transferred or exchanged shares of a Fund through an account directly maintained by the Intermediaries during the period covered by the request; |
| b. | The amount and dates of, and the Variable Product(s) associated with, such shareholder purchases, redemptions, transfers and exchanges; and |
| c. | Any other data mutually agreed upon in writing. |
2. Under this Agreement the term “Covered Transactions” are those transactions
which the Intermediaries consider when determining whether trading activity is excessive as
described in their Excessive Trading Policy.
3. Requests to provide shareholder information shall set forth the specific period for
which transaction information is sought. However, any such request will not cover a period of
more than 90 consecutive calendar days from the date of the request unless the Funds deem it
necessary to investigate compliance with policies established by the Funds for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares issued by the Funds.
4. Each Intermediary agrees to provide the requested shareholder information
promptly upon receipt of the request, but in no event later than fifteen (15) business days after
receipt of such request, provided that such information resides in its books and records. If
shareholder information is not on the Intermediary’s books and records, the Intermediary agrees
to obtain and transmit or have transmitted the requested information for Shareholders who hold
an account with an indirect intermediary.. In the event the Intermediary is unable to obtain or
have transmitted such information, the Fund may direct, in writing, the Intermediary to restrict or
prohibit the indirect intermediary from purchasing, in nominee name on behalf of other persons,
securities issued by the Fund, in accordance with the provisions of Section B below.
| D. | Agreement to Restrict Trading. |
| 1. Each Intermediary agrees to execute written instructions from the Funds to restrict | |
or prohibit further Covered Transactions involving the Funds shares by a shareholder who has
been identified by the Funds as having engaged in transactions in shares of a Fund (through an
account directly maintained by the Intermediary) that violate the policies and procedures
established by the Funds for the purposes of eliminating or reducing frequent trading of the
Funds’ shares.
| 2.a. | For those shareholders whose information is on the Intermediaries' books and |
| records, the Intermediaries agree to execute or have executed the written instructions from the | |
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Fund to restrict or prohibit trading as soon as reasonably practicable, but no later than ten (10)
business days after receipt of the instructions by the Intermediaries. The Intermediaries will
provide written confirmation to the Fund as soon as reasonably practicable that such instructions
have been executed but not later than 10 business days after the instructions have been executed.
2.b. For those shareholders whose information is not on the Intermediaries' books and
records, the Intermediaries agree to use reasonable efforts to execute the written instructions
from the Fund to restrict or prohibit trading as soon as reasonably practicable, but no later than
10 Business Days after receipt of the instructions by the Intermediaries. The Intermediaries will
provide written confirmation to the Fund as soon as reasonably practicable that such instructions
have or have not been executed. If an indirect intermediary is unable or unwilling to restrict or
prohibit trading by a Shareholder, upon the Funds’ written request, the Intermediary will restrict
or prohibit transactions in Fund Shares by the indirect intermediary.
3. Instructions to restrict or prohibit further Covered Transactions involving the
Funds shares must include:
a. A statement from the Fund that the shareholder’s trading activity has
either violated the Fund’s frequent trading policy or, in the Fund’s sole discretion,
such trading activity has been deemed disruptive;
b. The specific restriction(s) and/or prohibition(s) to be executed, including
the length of time such restriction(s) and/or prohibition(s) shall remain in place;
c. The TIN or any other government issued identifier, if known by the Funds,
that would help the Intermediaries determine the identity of affected
shareholder(s); and
d. Whether such restriction(s) and/or prohibition(s) are to be executed in
relation to all of the affected shareholder’s Variable Products, only the type of
Variable Product(s) through which the affected shareholder engaged in
transaction activity which triggered the restriction(s) and/or prohibition(s) or in
some other respect. In absence of direction from the Fund in this regard,
restriction(s) and/or prohibition(s) shall be executed as they relate to the
Intermediary’s Variable Product(s) through which the affected shareholder
engaged in the transaction activity which triggered the restriction(s) and/or
prohibition(s).
E. Limitation on Use of Information.
Both PDI and the Funds agree neither to use the information received from the Intermediary for
any purpose other than to comply with SEC Rule 22c-2 and other applicable laws, rules and
regulations, nor to share the information with anyone other than its employees who legitimately
need access to it. Neither PDI or the Fund or any of its affiliates or subsidiaries may use any
information provided pursuant to this Agreement for marketing or solicitation purposes. The
Fund will take such steps as are reasonably necessary to ensure compliance with this obligation.
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If a party to this Agreement becomes aware of any actual or suspected unauthorized access to or
unauthorized use or disclosure to an unauthorized third party of any non-public personal
financial information of a consumer provided or received pursuant to this Agreement and
determines that there is a reasonable likelihood of harm resulting from such access, use or
disclosure, such party promptly shall, at its expense: (i) notify the other party; (ii) investigate the
circumstances relating to such actual or suspected unauthorized access, use or disclosure; (iii)
take commercially reasonable steps to mitigate the effects of such unauthorized access, use or
disclosure and to prevent any reoccurrence; (iv) provide to the other such information regarding
such unauthorized access, use or disclosure as is reasonably required for the other party to
evaluate the likely consequences and any regulatory or legal requirements arising out of such
unauthorized access, use or disclosure; and (v) cooperate with the other party to further comply
with all relevant laws, rules and regulations. The party to this Agreement that causes the
unauthorized access, use or disclosure of such information shall indemnify and hold the other
party, (and any of its directors, officers, employees, or agents) harmless from any damages, loss,
cost, or liability (including reasonable legal fees ) arising in connection with a third party claim
or action brought against the other party resulting from such unauthorized use, access or
disclosure of the information provided or received pursuant to this Agreement.
In the event that the Fund is required by legal process, law, or regulation to disclose any
information received from the Intermediaries pursuant to this Agreement, the Fund shall provide
Intermediaries with prompt written notice of such requirement as far in advance of the proposed
disclosure as possible so that the Intermediaries (at their expense) may either seek a protective
order or other appropriate remedy which is necessary to protect their interests or waive
compliance with this provision to the extent necessary.
F. Prior Agreements.
The parties acknowledge that prior to the effective date of this Agreement efforts to monitor and
deter excessive trading activity within the Variable Products were governed by whatever
practices the Funds and the Intermediaries agreed to follow in the absence of any formal
agreement. The parties also acknowledge having previously entered into fund participation
and/or selling and service agreements concerning the purchase and redemption of shares of
Funds through the Variable Products. The terms of this Agreement supplement the fund
participation and/or selling and service agreements and to the extent the terms of this Agreement
conflict with the terms of the fund participation and/or selling and service agreements, the terms
of this Agreement will control. This Agreement will terminate upon termination of the fund
participation and/or selling and service agreements.
G. Notices.
1. Except as otherwise provided, all notices and other communications hereunder
shall be in writing and shall be sufficient if delivered by hand or if sent by confirmed facsimile or
e-mail, or by mail, postage prepaid, addressed:
a. If to Intermediaries, to:
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| ING U.S. Financial Services | ||
| Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Address: | ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | ||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |
| Email: | ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇.▇▇▇ | |
| b. | If to the Fund, to: | |
| PFPC Distributors, Inc._ | ||
| Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Address: | ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Mail Stop: ▇▇-▇▇▇▇-▇▇-▇ | |
| ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Phone: | ▇▇▇-▇▇▇-▇▇▇▇ | |
| Fax: | ▇▇▇-▇▇▇-▇▇▇▇ | |
| Email: | ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ | |
| 2. | The parties may by like notice, designate any future or different address to | |
which subsequent notices shall be sent. Any notice shall be deemed given when received.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed
in its name and on its behalf by its duly authorized officer as of the date first written above.
| ING Life Insurance and Annuity Company | Security Life of Denver Insurance Company | ||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| and Title: | Authorized Representative | and Title: | Authorized Representative |
| ING National Trust | Systematized Benefits Administrators Inc. | ||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | Name and | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| and Title: | Authorized Representative | Title: | Authorized Representative |
| ING USA Annuity and Life Insurance | Professional Funds Distributor, LLC | ||
| Company | |||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | Name | |
| and Title: | Authorized Representative | and Title: | VP - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| ReliaStar Life Insurance Company | |||
| By: | /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| and Title: | Authorized Representative | ||
| ReliaStar Life Insurance Company of New | PFPC DISTRIBUTORS, INC. | ||
| York | |||
| By: | /s/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Name | ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | Name | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| and Title: | Authorized Representative | and Title: | Vice President |
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Schedule A
Professional Funds Distributor, LLC (the “Fund”) is principal underwriter
for each series/portfolio of the following funds:
| Fund Name | Share | Ticker | CUSIP |
| Class | Symbol | ||
| CRM Small Cap Value Fund* | Institutional | CRISX | ▇▇▇▇▇▇▇▇▇ |
| CRM Small Cap Value Fund* | Investor | CRMSX | ▇▇▇▇▇▇▇▇▇ |
| CRM Mid Cap Value Fund* | Institutional | CRIMX | ▇▇▇▇▇▇▇▇▇ |
| CRM Mid Cap Value Fund* | Investor | CRMMX | ▇▇▇▇▇▇▇▇▇ |
| CRM Small/Mid Cap Value Fund | Institutional | CRIAX | ▇▇▇▇▇▇▇▇▇ |
| CRM Small/Mid Cap Value Fund | Investor | CRMAX | ▇▇▇▇▇▇▇▇▇ |
| CRM Small/Mid Cap Value Fund | Advisor | CRAAX | ▇▇▇▇▇▇▇▇▇ |
| CRM Mid/Large Cap Value Fund | Institutional | CRIGX | ▇▇▇▇▇▇▇▇▇ |
| CRM Mid/Large Cap Value Fund | Investor | CRMGX | ▇▇▇▇▇▇▇▇▇ |
| CRM Mid/Large Cap Value Fund | Advisor | CRAGX | ▇▇▇▇▇▇▇▇▇ |
| CRM All Cap Value Fund | Institutional | CRIEX | ▇▇▇▇▇▇▇▇▇ |
| CRM All Cap Value Fund | Investor | CRMEX | ▇▇▇▇▇▇▇▇▇ |
| CRM All Cap Value Fund | Advisor | CRAEX | ▇▇▇▇▇▇▇▇▇ |
*With certain limited exceptions, the CRM Small Cap Value Fund and CRM Mid Cap
Value Fund are currently closed to new investors.
▇-▇
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ING “Excessive Trading” Policy
The ING family of insurance companies (“ING”), as providers of multi-fund variable insurance and
retirement products, has adopted this Excessive Trading Policy to respond to the demands of the various
fund families which make their funds available through our variable insurance and retirement products
to restrict excessive fund trading activity and to ensure compliance with Section 22c-2 of the Investment
Company Act of 1940, as amended. ING’s current definition of Excessive Trading and our policy with
respect to such trading activity is outlined below.
| 1. | ING actively monitors fund transfer and reallocation activity within its variable insurance and retirement products to identify Excessive Trading. | |
| ING currently defines Excessive Trading as: | ||
| a. | More than one purchase and sale of the same fund (including money market funds) within a 60 calendar day period (hereinafter, a purchase and sale of the same fund is referred to as a “round-trip”). This means two or more round-trips involving the same fund within a 60 calendar day period would meet ING’s definition of Excessive Trading; or | |
| b. | Six round-trips within a twelve month period. | |
| The following transactions are excluded when determining whether trading activity is excessive: | ||
| a. | Purchases or sales of shares related to non-fund transfers (for example, new purchase payments, withdrawals and loans); | |
| b. | Transfers associated with scheduled dollar cost averaging, scheduled rebalancing or scheduled asset allocation programs; | |
| c. | Purchases and sales of fund shares in the amount of $5,000 or less; | |
| d. | Purchases and sales of funds that affirmatively permit short-term trading in their fund shares, and movement between such funds and a money market fund; and | |
| e. | Transactions initiated by a member of the ING family of insurance companies. | |
| 2. | If ING determines that an individual has made a purchase of a fund within 60 days of a prior round- trip involving the same fund, ING will send them a letter warning that another sale of that same fund within 60 days of the beginning of the prior round-trip will be deemed to be Excessive Trading and result in a six month suspension of their ability to initiate fund transfers or reallocations through the Internet, facsimile, Voice Response Unit (VRU), telephone calls to the ING Customer Service Center, or other electronic trading medium that ING may make available from time to time (“Electronic Trading Privileges”). Likewise, if ING determines that an individual has made five round-trips within a twelve month period, ING will send them a letter warning that another purchase and sale of that same fund within twelve months of the initial purchase in the first round-trip in the prior twelve month period will be deemed to be Excessive Trading and result in a six month suspension of their Electronic Trading Privileges. According to the needs of the various business units, a copy of the warning letters may also be sent, as applicable, to the person(s) or entity authorized to initiate fund transfers or reallocations, the agent/registered representative or investment adviser for that individual. A copy of the warning letters and details of the individual’s trading activity may also be sent to the fund whose shares were involved in the trading activity. | |
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| 3. | If ING determines that an individual has used one or more of its products to engage in Excessive Trading, ING will send a second letter to the individual. This letter will state that the individual’s Electronic Trading Privileges have been suspended for a period of six months. Consequently, all fund transfers or reallocations, not just those which involve the fund whose shares were involved in the Excessive Trading activity, will then have to be initiated by providing written instructions to ING via regular U.S. mail. During the six month suspension period, electronic “inquiry only” privileges will be permitted where and when possible. A copy of the letter restricting future transfer and reallocation activity to regular U.S. mail and details of the individual’s trading activity may also be sent to the fund whose shares were involved in the Excessive Trading activity. |
| 4. | Following the six month suspension period during which no additional Excessive Trading is identified, Electronic Trading Privileges may again be restored. ING will continue to monitor the fund transfer and reallocation activity, and any future Excessive Trading will result in an indefinite suspension of the Electronic Trading Privileges. Excessive Trading activity during the six month suspension period will also result in an indefinite suspension of the Electronic Trading Privileges. |
| 5. | ING reserves the right to limit fund trading or reallocation privileges with respect to any individual, with or without prior notice, if ING determines that the individual’s trading activity is disruptive, regardless of whether the individual’s trading activity falls within the definition of Excessive Trading set forth above. Also, ING’s failure to send or an individual’s failure to receive any warning letter or other notice contemplated under this Policy will not prevent ING from suspending that individual’s Electronic Trading Privileges or taking any other action provided for in this Policy. |
| 6. | Each fund available through ING’s variable insurance and retirement products, either by prospectus or stated policy, has adopted or may adopt its own excessive/frequent trading policy. ING reserves the right, without prior notice, to implement restrictions and/or block future purchases of a fund by an individual who the fund has identified as violating its excessive/frequent trading policy. All such restrictions and/or blocking of future fund purchases will be done in accordance with the directions ING receives from the fund. |
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