TO SELLING AND SERVICES AGREEMENT This Eighth Amendment to Selling and Services Agreement (the “Eighth Amendment”) dated as of
Exhibit 24(b)(8.43) EIGHTH AMENDMENT | |
TO SELLING AND SERVICES AGREEMENT | |
This Eighth Amendment to Selling and Services Agreement (the “Eighth Amendment”) dated as of | |
November 30, 2010 by and between ING Life Insurance and Annuity Company (formerly Aetna Life Insurance and | |
Annuity Company) (“ING Life”), ING Institutional Plan Services, LLC (“ING Institutional”), ING Financial | |
Advisers, LLC (formerly Aetna Investment Services, Inc.) (“ING Financial”) (collectively “ING”), and each of the | |
investment companies comprising the Lord Xxxxxx Family of Funds, whether existing at the date of this Eighth | |
Amendment or established subsequent thereto, including each separate investment portfolio (each a “Fund” and | |
collectively, the “Funds”), Lord Xxxxxx Distributor LLC (the “Distributor”), and Lord, Xxxxxx & Co. LLC, | |
(“Adviser”), is made to the Selling and Services Agreement dated as of March 1, 2001 as amended on July 25, 2002, | |
September 26, 2003, September 1, 2004, October 1, 2007, August 12, 2008, August 31, 2008 and September 30, 2009 | |
(the “Agreement”). Terms defined in the Agreement are used herein as therein defined. | |
WHEREAS, the parties desire to terminate the Participation Agreement dated May 1, 1996 (“Participation | |
Agreement”) between ING Life Insurance and Annuity Company (formerly Aetna Life Insurance and Annuity | |
Company), Lord Xxxxxx Family of Funds and Lord, Xxxxxx & Co. LLC (as successor to Lord, Xxxxxx & Co.) (“Lord, | |
Xxxxxx & Co.”), which provides for certain ING Life Insurance and Annuity Company Separate Accounts to serve as | |
an investment vehicle within annuity contracts; and | |
WHEREAS, the parties desire to replace the Participation Agreement with the Agreement, as further | |
amended by the Eighth Amendment; and | |
WHEREAS, for purposes of this Eighth Amendment, 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 (“Tax Code”), certain nonqualified | |
deferred compensation arrangements, and custodial accounts under Section 403(b)(7) or 408 of the Tax Code | |
(collectively, “Plans”); and | |
WHEREAS, ING Life has established and may establish in the future separate accounts for all of its annuity | |
contracts and funding agreements (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, the parties wish to make available the Funds to Contracts issued by ING Life under this | |
Agreement; | |
NOW, THEREFORE, in consideration of the promises and mutual covenants hereinafter contained, the | |
parties agree as follows: | |
1. | The Participation Agreement dated May 1, 1996 (“Participation Agreement”) between ING Life |
Insurance and Annuity Company (formerly Aetna Life Insurance and Annuity Company), Lord Xxxxxx Family of | |
Funds and Lord, Xxxxxx & Co. is hereby terminated. | |
2. | The header on page 1 of the Agreement is hereby amended to include the words “AND FUND |
PARTICIPATION AGREEMENT” after the words “SELLING AND SERVICES AGREEMENT.” |
3. | All references to Plan Representatives or Participants within said Agreement are hereby amended to | |
refer to Contract owners, Plan Representatives or Participants. | ||
4. | The following provision is added to Section 1 of the Agreement entitled “Investment of Plan | |
Assets”: | ||
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. | ||
5. | Paragraph 2 of the Agreement is hereby deleted in its entirety and replaced with the following: | |
2. | Omnibus Account. | |
The parties agree, with respect to each Fund, up to three omnibus accounts may be | ||
maintained (“Account” or “Accounts”). For Plan assets directed for investment directly in the Fund, | ||
one Account held in the name of the Nominee may be maintained in connection with Plans for | ||
which ING Life shall provide various recordkeeping and other administrative services, and a second | ||
Account held in the name of the Nominee may be maintained in connection with Plans for which | ||
ING Institutional shall provide various recordkeeping and other administrative services. | ||
Alternatively, one Account held in the name of the Nominee may be maintained in connection with | ||
Plans for which both ING Life and ING Institutional shall provide such recordkeeping and | ||
administrative services. An additional Account held in the name of ING Life shall be maintained for | ||
those Plan assets directed for investment in the Fund through the Contracts. Accounts shall be | ||
separate and distinct from those ING Institutional accounts (both omnibus and per Plan accounts) | ||
covered under the Services Agreement, dated January 1, 2008, by and between ING Institutional | ||
Plan Services, LLC (f/k/a CitiStreet LLC), ING Investment Advisors, LLC (f/k/a CitiStreet Advisors | ||
LLC), Lord Xxxxxx Distributor LLC and the Funds (the “Legacy Agreement”). ING Life or ING | ||
Institutional, as service agents for the Plans, shall facilitate purchase and sale transactions with | ||
respect to the Account in accordance with the Agreement. ING Institutional, as service agent for | ||
Plans, or ING Life, as service agent for Plans or issuer of the Contracts, shall facilitate purchase and | ||
sale transactions with respect to the Accounts in accordance with the Agreement. | ||
6. | Subparagraph (a) of Paragraph 3 of the Agreement is hereby deleted in its entirety and replaced with | |
the following subparagraph (a): | ||
(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 | ||
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Participants, provided, however, that the Funds may 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 Funds, and consistent with the Funds' | |
prospectuses, deemed necessary, desirable, or appropriate. | |
7. | Subparagraph (c) of Paragraph 3 of the Agreement is deleted in its entirety and placed with the |
following subparagraph (c): | |
(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 Distributor 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 Business Day shall be treated as if received on the next following Business Day. ING | |
Financial agrees that all Instructions received by ING Financial, which will be transmitted to | |
Distributor for processing as of a particular Business Day, will have been received and time stamped | |
prior to the Close of Trading on that previous Business Day. | |
8. | Subparagraph (i) of Paragraph 3 of the Agreement is hereby deleted in its entirety and replaced with |
the following: | |
(i) Each Fund 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 that Fund's daily net asset | |
value, dividend rate, or capital gains distribution rate or (ii) incorrect or late reporting of the daily | |
net asset value, dividend rate, or capital gain distribution rate of such Fund, upon written notification | |
by ING, with supporting data, to Distributor. In addition, each Fund shall be liable to ING for | |
systems and out of pocket costs incurred by ING in making a Contract owner's, Plan's or a | |
Participant's account whole, subject to the limits set forth below, if such costs or expenses are a | |
result of the Fund's failure to provide timely or correct net asset values, dividend and capital gains or | |
financial information and if such information is not corrected by 4:00 p.m. East Coast time of the | |
next business day after releasing such incorrect information provided the incorrect NAV as well as | |
the correct NAV for each day that the error occurred is provided. 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. | |
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9. | Paragraph 4 of the Agreement is hereby deleted in its entirety and replaced with the following: | |
4. | Recordkeeping Fees. The provision of recordkeeping and recordkeeping-related | |
services to Contract owners or to the Plans shall be the responsibility of ING Life, ING Institutional, | ||
and shall not be the responsibility of Distributor or the Funds. In consideration of the recordkeeping | ||
services and recordkeeping-related services provided by ING under the Agreement, the Funds agree | ||
to pay or cause to be paid an annual fee as specified in Exhibit A (attached), based on the average | ||
net assets invested in the Funds through the Contracts or through ING Life's or ING Institutional's | ||
arrangements with Plans in each calendar quarter. Such fees shall apply only with respect to the | ||
Account or Accounts and not accounts covered by the Legacy Agreement. Within thirty (30) days | ||
after the end of each calendar quarter the Funds shall provide ING Life or ING Institutional with a | ||
statement showing the aggregate value of ING Life's or ING Institutional's accounts for the | ||
preceding quarter and include therewith a payment to ING Life or ING Institutional for the | ||
compensation due ING Life or ING Institutional in accordance with this paragraph. | ||
10. | The first sentence of paragraph 5 of the Agreement is hereby amended to read as follows: | |
5. Service and Distribution Fees. To compensate ING Financial for its servicing of | ||
shareholders and distribution of certain Fund shares, Distributor, shall make quarterly payments to | ||
ING Financial, as specified in Exhibit A (attached), based on the average net assets invested in Fund | ||
shares through the Contracts or through ING Life's or ING Institutional's arrangements with Plans in | ||
each calendar quarter. | ||
11. | The first sentence of paragraph 6 of the Agreement is hereby amended to read as follows: | |
6. Expenses. The Funds shall reimburse certain agreed upon out-of-pocket expenses ING | ||
Life or ING Institutional incur in connection with the Contract owners and Plans. Except as | ||
otherwise agreed in writing, ING Life or ING Institutional shall bear all other expenses incidental to | ||
the performance of the services required in connection with this Agreement. Distributor shall, | ||
however, provide ING, or at ING's request, the Plan, with such sufficient copies of relevant | ||
prospectuses for all Participants making an initial Fund purchase as well as relevant prospectuses, | ||
prospectus supplements and periodic reports to shareholders, and other material as shall be | ||
reasonably requested by ING to disseminate to Plan participants who purchase shares of the Funds. | ||
12. | Subparagraph (b) of Paragraph 7 of the Agreement is hereby deleted in its entirety and replaced with | |
the following: | ||
(b) At the option of ING Life, ING Institutional 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. | ||
13. | Subparagraph (h) is hereby added to paragraph 7 of the Agreement as follows: | |
(h) 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. | ||
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ING Life will give sixty (60) days' written notice to the Fund and the Distributor of any decision to | |||
replace the Fund's shares. | |||
14. | Paragraph 8 of the Agreement is hereby deleted in its entirety and replaced with the following: | ||
8. Continuation of Agreement. Termination as the result of any cause listed in | |||
Section 7 hereof shall not affect the Funds' respective obligations to continue to maintain the | |||
Account as an investment option for Contracts then in force for which its shares serve or may serve | |||
as the underlying medium, or for Plans electing to invest in the Funds prior to the termination of this | |||
Agreement. For avoidance of doubt, the fees outlined in Exhibit A will continue to be payable under | |||
the terms in Sections 4 and 5 for a period of six (6) months after the termination of the Agreement | |||
(the “Continuation Period”), for as long as fund assets are held through the Contracts or through | |||
ING Life's or ING Institutional's arrangement with Plans during the Continuation Period. In | |||
addition, the parties agree that the Agreement will survive during the Continuation Period as | |||
necessary to cover the continuation of the parties' obligations regarding the Funds and the Contracts. | |||
15. | The first sentence of subparagraph (a) of Paragraph 8 of the Agreement is hereby amended to read as | ||
follows: | |||
9. Advertising and Related Materials. (a) Advertising and literature with respect to | |||
the Funds prepared by ING Financial or the Nominee or its agents for use in marketing shares of the | |||
Funds to Contract owners or Plans (except any material that simply lists the Funds' names) shall be | |||
submitted to Distributor for review and approval before such material is used with the general public | |||
or any Contract owner, Plan, Plan Representative, or Participant. | |||
16. | Paragraph 10 of the Agreement is hereby deleted in its entirety and replaced with the following: | ||
10. Proxy Voting. ING or the Nominee will distribute to Contract owners, Plan | |||
Representatives or Participants all proxy materials furnished by Distributor or its designees for the | |||
Funds. To the extent that the Contracts or Plans provide for pass through voting privileges to | |||
Contract owners or Plan Participants and to the extent consistent with the provisions of the Plan, | |||
ING or the Nominee shall use its best efforts to obtain the agreement of Contract owners or Plan | |||
Representatives to vote Fund shares for which no voting instructions are received from Contract | |||
owners or Plan Participants in the same proportion as shares for which such instructions have been | |||
received. ING and the Nominee shall not oppose or interfere with the solicitation of proxies for | |||
Fund shares held for such beneficial owners. | |||
17. | The first paragraph of Exhibit A of the Agreement is hereby amended to read as follows: | ||
Series and Classes which may be offered to Contract owners or to Plans through ING pursuant to the | |||
Selling and Services Agreement dated as of March 1, 2001, as amended by Amendment No.1 to the | |||
Selling and Services Agreement dated as of July 25, 2002, by Amendment No. 2 to the Selling and | |||
Services Agreement dated as of September 26th, 2003, by Amendment No. 3 to the Selling and | |||
Services Agreement effective as of September 1, 2004, by Amendment to Agreement effective as of | |||
October 1, 2007, Amendment No. 5 to the Selling and Services Agreement effective as of August | |||
12, 2008, Amendment No. 6 to the Selling and Services Agreement effective as of August 31, 2008, | |||
Amendment No. 7 to the Selling and Services Agreement effective September 30, 2009 (“Selling | |||
and Services Agreement”). | |||
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18. | Except as modified hereby, all other terms and conditions of the Agreement shall remain in full |
force and effect. | |
19. | This Amendment may be executed in two or more counterparts, each of which shall be deemed to be |
an original, but all of which together shall constitute one and the same Amendment. | |
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written | |
above. |
ING LIFE INSURANCE AND | THE LORD XXXXXX FAMILY OF FUNDS | |||
ANNUITY COMPANY | ||||
By: /s/ Xxxx X. Xxxxxxx | By: /s/ Xxxxxxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxxx | Name: | Xxxxxxxx X. Xxxxxx | |
Title: | Vice President | Title: | Vice President and Secretary | |
LORD XXXXXX DISTRIBUTOR LLC | ||||
ING FINANCIAL ADVISERS, LLC | By: Lord, Xxxxxx & Co. LLC, its Managing | |||
Member | ||||
By: /s/ Xxxxx Xxxxxx | By: /s/ Xxxxxxxx X. Xxxxxx | |||
Name: | Xxxxx Xxxxxx | Name: | Xxxxxxxx X. Xxxxxx | |
Title: | COO/VP | Title: | Member | |
ING INSTITUTIONAL PLAN SERVICES LLC | ||||
By: /s/ Xxxxxxxx Xxxxxxxxx | ||||
Name: | Xxxxxxxx Xxxxxxxxx, Attorney in Fact | |||
Title: | Vice President | |||
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