First Amendment to the Selling and Services Agreement and Participation Agreement
Exhibit 99-B.8.24 | ||||
First Amendment to the Selling and Services Agreement and Participation Agreement | ||||
This First Amendment dated as of February 4, 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 Artisan Partners Limited Partnership (“APLP”) | ||||
and Artisan Distributors LLC (“Distributor”) is made to the Selling and Services Agreement and Fund | ||||
Participation Agreement dated as of November 30, 2006 (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, including, but not limited to, the representations found in Section 11(c) of | ||||
the Agreement, 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. | Paragraph 4 of the Agreement are hereby deleted in their entirety and replaced with the | |||
following: | ||||
4. | 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, APLP agrees to pay to ING Life | ||
or ING Institutional, as appropriate, a servicing fee, 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. APLP 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. Upon request, ING will provide APLP with a | ||
statement showing the number Plan Participants. Each quarterly fee will be independent | ||
of every other quarterly period fee. ING understands that a portion of the fees will be | ||
reimbursed by APLP by the Funds in accordance with the Funds’ practice in effect from | ||
time to time. 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. | ||
4. | The following is added as Section 11(f) to the Agreement: | |
(f) 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 16(b) of the Agreement: | |
(b) 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 | ||
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ING Americas Legal Services | ||
Xxx Xxxxxx Xxx, X0X | ||
Xxxxxxx, XX 00000 | ||
Fax: 000-000-0000 | ||
To Distributor/APLP: | ||
Artisan Distributors LLC | ||
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 000 | ||
Xxxxxxxxx, XX 00000 | ||
Attention: General Counsel | ||
(000) 000-0000 | ||
Any notice, demand or other communication given in a manner prescribed in this Subsection (b) | ||
shall be deemed to have been delivered on receipt. | ||
6. | The following paragraph is added under Section 16 “Miscellaneous” of the Agreement: | |
(g) The parties acknowledge that as of the date first set forth above, neither ING | ||
Institutional nor ING Life possess the systems capability to assess redemption fees on | ||
redemptions and exchanges by Participants in the shares of the Funds. In light of the | ||
foregoing, the parties agree that transactions in the Funds by Plans or Plan Participants | ||
whose transactions in Fund shares are conducted through an Account recordkept by ING | ||
Institutional or ING Life pursuant to the terms of this Agreement will not be subject to | ||
any redemption fees that may otherwise be required by the Funds. ING Institutional and | ||
ING Life represent that they are in process of developing the systems capability to assess | ||
redemption fees, will notify Distributor promptly after such capability has been | ||
developed and will use such capability to assess redemptions fees in a time frame and | ||
manner mutually accepted to all parties | ||
7. | Schedule A is hereby deleted and replaced by Schedule A, attached hereto. | |
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. | ||
[Signatures appear on following page.] | ||
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ING LIFE INSURANCE AND | ARTISAN DISTRIBUTORS LLC | |||||
ANNUITY COMPANY | ||||||
By: | /s/ Xxxxx X. Xxxxx | |||||
By: | /s/ Xxxx X. Xxxxxxx | Name: | Xxxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxxxx | Title: | Vice President | |||
Title: | Vice President | |||||
ING FINANCIAL ADVISERS, LLC | ARTISAN PARTNERS LIMITED PARTNERSHIP | |||||
By: | /s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxxx | Name: | Xxxxx X. Xxxxx | |||
Title: | V.P./C.O.O. | Title: | Vice President | |||
ING INSTITUTIONAL PLAN SERVICES, LLC | ||||||
By: | /s/ Xxxxxxxx Xxxxxxxxx attorney-in-fact | |||||
Name: | Xxxxxxxx Xxxxxxxxx | |||||
Title: | Vice President |
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SCHEDULE B List of Available Funds |
All Investor class shares of Artisan Funds
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SCHEDULE C |
Fee Schedule |
As compensation for the services ING renders under the Agreement, APLP 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 | Investor | |
12b-1 Fees | ___% | |
Service Fees | ___% | |
Total Fees | ___% |
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