First Amendment to the Amended and Restated Selling and Services Agreement and Participation Agreement
| Exhibit 99-B.8.11 |
| First Amendment to the Amended and Restated Selling and Services Agreement and |
| Participation Agreement |
This First Amendment dated as of February 5, 2009 by and between ING Life Insurance and Annuity
Company (“ING Life”), ING Institutional Plan Services, LLP (“ING Institutional”), ING Financial Advisers,
LLC (“ING Financial”)(collectively “ING”), and Xxxx Xxxxx & Company, Incorporated (“Distributor”), is made
to the Amended and Restated Selling and Services Agreement and Fund Participation Agreement dated as of
May 1, 2008 (the “Agreement”). Terms defined in the Agreement are used herein as therein defined.
WHEREAS, the parties wish to add ING Institutional to the Agreement; and
WHEREAS, the parties wish to make additional funds available under the Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants hereinafter contained, the
parties agree as follows:
1. ING Institutional is hereby added to the Agreement as an additional recordkeeper, and all provisions in
the Agreement relating to ING Life in its capacity as a recordkeeper in connection with the investment by Plans
in the Funds are hereby amended to refer to both ING Life and ING Institutional. The defined term “ING” in
the Agreement is hereby amended to include ING Life, ING Institutional, and IFA.
2. Paragraph 2 of the Agreement is hereby deleted in its entirety and replaced with the following:
2. Omnibus Account.
The parties agree that, with respect to each Fund, up to three omnibus accounts, each held in
the name of the Nominee, may be maintained (the “Account” or collectively, the “Accounts”). One
Account may be maintained in connection with Plans for which ING Life shall provide various
recordkeeping and other administrative services, and a second Account may be maintained in connection
with Plans for which ING Institutional shall provide various recordkeeping and other administrative
services. Alternatively, one Account may be maintained in connection with Plans for which both ING
Life and ING Institutional shall provide such recordkeeping and administrative services. A third
Account held in the name of ING Life shall be maintained for those Plan assets directed for investment
in the Fund through the Contracts. 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.
3. Paragraphs 5 and 6 of the Agreement are hereby deleted in their entirety and replaced with the
following:
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, ING Institutional or the Nominee and shall not be
the responsibility of Distributor. 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, Distributor agrees to pay to ING Life or ING
Institutional, as appropriate, a servicing fee (which may be paid as a shareholder service fee, sub-
accounting fee, or from the legitimate profits of Xxxx Xxxxx Management, Inc.), as specified in Schedule
C (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. The parties agree that all
or a portion of such servicing fee may be derived from a Fund’s 12b-1 plan. Distributor will make such
payments to ING Life or ING Institutional 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 or ING Institutional for the quarter and such other supporting data as may be reasonably requested
by ING Life or ING Institutional. If required by a Plan or by applicable law, ING Life or ING
Institutional shall have the right to 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 Distributor to offset other fees payable by
the Plan to ING Life or ING Institutional.
6. 12b-1 Fees.
To compensate ING Financial for its distribution of Fund Shares or administrative services
related to Fund Shares, Distributor shall make quarterly payments to ING Financial, as specified in
Schedule C (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. Distributor
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 shall have the right to allocate to a
Plan or to Participant accounts in a Plan all or a portion of such 12b-1 fees, or to use 12b-1 fees it
collects from Distributor to offset other fees payable by the Plan to ING Financial.
4. The following is added as Section 13(d) to the Agreement:
(d) Representations of ING Institutional. ING Institutional represents and warrants:
(i) that it (1) is a limited liability company 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 and state 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 it 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.
5. The following replaces Section 15(d) of the Agreement:
(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: |
| Xxxxxxx Xxxxxxxxxx |
| Counsel |
| ING Americas Legal Services |
| Xxx Xxxxxx Xxx, X0X |
| Xxxxxxx, XX 00000 |
| Fax: 000-000-0000 |
| 2 |
| To Distributor: |
| Xxxx Xxxxx & Company, Inc. |
| 000 Xxxxx Xxxxxx |
| Xxx Xxxx, XX 1003 |
| Attention: General Counsel |
| Fax: (000) 000-0000 |
Any notice, demand or other communication given in a manner prescribed in this Subsection (d)
shall be deemed to have been delivered on receipt.
6. The following paragraph is added under Section 15 “Miscellaneous” of the Agreement:
(i) The parties agree that transactions in the Funds by Plans or Plan Participants pursuant
to the terms of this Agreement are not subject to any redemption fees that may otherwise be
required by the Funds; provided however that upon written request by Distributor, ING Life
and ING Institutional will implement such redemptions fees in a time frame and manner
mutually acceptable to all parties.
7. Schedule B, attached hereto, is hereby added to the Agreement.
8. Schedule C, attached hereto, is hereby added to the Agreement.
9. Except as modified hereby, all other terms and conditions of the Agreement shall remain in full force
and effect.
10. 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 | XXXX XXXXX & COMPANY, INCORPORATED | |
| ANNUITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxxx | By: /s/ Xxx Xxxxxx |
| Name: | Xxxx X. Xxxxxxx | Name: Xxx Xxxxxx |
| Title: | Vice President | Title: Chief Operating Officer, Chief Legal Officer |
| ING FINANCIAL ADVISERS, LLC | ING INSTITUTIONAL PLAN SERVICES, LLC | |
| By: | /s/ Xxxxx X. Xxxxxx | By: /s/ Xxxxxxxx Xxxxxxxxx attorney-in-fact |
| Name: | Xxxxx X. Xxxxxx | Name: Xxxxxxxx Xxxxxxxxx |
| Title: | V.P./C.O.O. | Title Vice President |
| 3 | ||
| SCHEDULE B | |
| List of Available Funds | |
| All Class A shares of Xxxxx Funds | |
| All Class I shares of Xxxxx Funds | |
| All Class N shares of Xxxxx Funds | |
| All Class R shares of Xxxxx Funds | |
| 4 | |
| SCHEDULE C |
| Fee Schedule |
As compensation for the services ING renders under the Agreement, Distributor will pay a fee to ING equal
to on an annual basis the rate set forth below multiplied by the average daily value of the assets in ING
accounts in the Funds.
| Share Class | A | I | N | R | |
| 12b-1 Fees | 0.25% | N/A | 0.25% | 0.50% | |
| Shareholder Servicing Fees |
N/A | 0.25% | N/A | 0.25% | |
| Sub-Accounting Fees |
0.25% | 0.25% | 0.25% | 0.25% | |
| Additional Payments from Legitimate Profits of Xxxx Xxxxx Management, Inc. |
0.15% | 0.15% | N/A | N/A | |
| Total Fees | 0.65% | 0.65% | 0.50% | 1.00% | |
| 5 | |||||
