EX-77.(e)(5)
SECOND AMENDMENT TO INVESTMENT SUBADVISORY AGREEMENT
between
ING LIFE INSURANCE AND ANNUITY COMPANY
and
XXXXXXXXXXX CAPITAL LLC
This Second Amendment, effective as of December 15, 2006, amends the
Investment Subadvisory Agreement (the "Agreement") dated the 19th day of
November 2001, as amended, between ING Life Insurance and Annuity Company, an
insurance corporation organized and existing under the laws of the State of
Connecticut (the "Adviser") and OpCap Advisers, a Delaware general partnership
whose obligations under the Agreement were subsequently assumed by Xxxxxxxxxxx
Capital LLC in a Novation Agreement dated July 21, 2005 (the "Subadviser").
W I T N E S S E T H
WHEREAS, the parties desire to amend the Agreement and agree that the
amendment will be effective as of December 15, 2006.
NOW, THEREFORE, the parties agree as follows:
1. Section 1 is hereby deleted in its entirety and replaced with the
following:
1. Appointment. The Adviser hereby appoints the Subadviser to act as
the investment adviser and manager to the series of the Company set forth
on Appendix A hereto (collectively, the "Portfolio") for the period and on
the terms set forth in this Agreement. The Subadviser accepts such
appointment and agrees to furnish the services herein set forth for the
compensation herein provided.
In the event the Company designates one or more series (other than
the Portfolio) with respect to which the Adviser wishes to retain the
Subadviser to render investment advisory services hereunder, it shall
notify the Adviser in writing. If the Subadviser is willing to render such
services, it shall notify the Adviser in writing, whereupon such series
shall become a Portfolio hereunder, and be subject to this Agreement.
2. Delete in its entirety the last sentence of Paragraph 2(E), which
currently reads:
In addition, subject to seeking the best execution available, the
Subadviser may also consider sales of shares of the Portfolio as a factor
in the selection of brokers and dealers.
And replace with the following:
"The Subadviser will consult with the Adviser to the end that
portfolio transactions on behalf of a Portfolio are directed to
broker-dealers that participate in
commission recapture programs benefiting the Portfolio, provided
that neither the Subadviser nor the Adviser will direct brokerage in
recognition of the sale of Portfolio shares."
3. Section 8 is hereby deleted in its entirety and replaced with the
following:
8. Duration of Agreement. With respect to each Series identified as
a Portfolio on Appendix A hereto as in effect on the date of this
Amendment, unless earlier terminated with respect to any Portfolio this
Agreement shall continue in full force and effect through Novemeber 30,
2007. Thereafter, unless earlier terminated with respect to a Portfolio,
the Agreement shall continue in full force and effect with respect to each
such Portfolio for periods of one year, provided that such continuance is
specifically approved at least annually by (i) the vote of a majority of
the Board of Directors of the Company, or (ii) the vote of a majority of
the outstanding voting shares of the Portfolio (as defined in the 1940
Act), and provided that such continuance is also approved by the vote of a
majority of the Board of Directors of the Company who are not parties to
this Agreement or "interested persons" (as defined in the 0000 Xxx) of the
Company or the Adviser, cast in person at a meeting called for the purpose
of voting on such approval.
With respect to any Portfolio that was added to Appendix A hereto as
a Portfolio after the date of this Amendment, the Agreement shall become
effective on the later of (i) the date Appendix A is amended to reflect
the addition of such Portfolio as a Portfolio under the Agreement or (ii)
the date upon which the shares of the Portfolio are first sold to the
public, subject to the condition that the Company's Board of Directors,
including a majority of those Directors who are not interested persons (as
such term is defined in the 0000 Xxx) of the Adviser, and the shareholders
of such Portfolio, shall have approved this Agreement. Unless terminated
earlier as provided herein with respect to any such Portfolio, the
Agreement shall continue in full force and effect for a period of two
years from the date of its effectiveness (as identified above) with
respect to that Portfolio. Thereafter, unless earlier terminated with
respect to a Portfolio, the Agreement shall continue in full force and
effect with respect to each such Portfolio for periods of one year,
provided that such continuance is specifically approved at least annually
by (i) the vote of a majority of the Board of Directors of the Company, or
(ii) vote of a majority of the outstanding voting shares of such Portfolio
(as defined in the 1940 Act), and provided that such continuance is also
approved by the vote of a majority of the Board of Directors of the
Company who are not parties to this Agreement or "interested persons" (as
defined in the 0000 Xxx) of the Company or the Adviser, cast in person at
a meeting called for the purpose of voting on such approval.
4. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Agreement.
5. In all other respects, the Agreement is hereby confirmed and remains
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ING LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Vice President
XXXXXXXXXXX CAPITAL LLC
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
--------------------------------
Title:
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APPENDIX A
to
INVESTMENT SUB-ADVISORY AGREEMENT
between
ING LIFE INSURANCE AND ANNUITY COMPANY
and
XXXXXXXXXXX CAPITAL LLC
Portfolios Annual Subadviser Fee
---------- ---------------------
(as a percentage of average daily net assets)
ING OpCap Balanced Value Porfolio 0.40% on the first $100 million in assets
0.30% on all assets in excess of $100 million
