EXHIBIT 99.B(d)(2)(M)
AMENDED AND RESTATED PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made the 26th day of March, 2002, as amended and restated on
April 29, 2005, among ING Investors Trust (formerly The GCG Trust) (the
"Trust"), a Massachusetts business trust, Directed Services, Inc. (the
"Manager"), a New York corporation, and X.X. Xxxxxx Investment Management Inc.
(successor to X.X. Xxxxxx Xxxxxxx Asset Management (U.S.A.) Inc.) ("Portfolio
Manager"), a corporation organized under the laws of the State of Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Trust is authorized to issue separate series, each of
which will offer a separate class of shares of beneficial interest, each series
having its own investment objective or objectives, policies, and limitations;
WHEREAS, the Trust currently offers shares in multiple series, may
offer shares of additional series in the future, and intends to offer shares of
additional series in the future;
WHEREAS, pursuant to two Management Agreements, effective as of October
24, 1997, and subsequently amended, and April 29, 2005, (the "Management
Agreements") copies of which have been provided to the Portfolio Manager, the
Trust has retained the Manager to render advisory, management, and
administrative services with respect to the Trust's series; and
WHEREAS, the Trust and the Manager wish to retain the Portfolio Manager
to furnish investment advisory services to one or more of the series of the
Trust, and the Portfolio Manager is willing to furnish such services to the
Trust and the Manager.
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Trust, the Manager,
and the Portfolio Manager as follows:
1. APPOINTMENT. The Trust and the Manager hereby appoint Portfolio
Manager to act as portfolio manager to the series of the Trust designated on
SCHEDULE A of this Agreement (each a "Series") for the periods and on the terms
set forth in this Agreement. The Portfolio Manager accepts such appointment and
agrees to furnish the services herein set forth for the compensation herein
provided.
In the event the Trust designates one or more series other than the
Series with respect to which the Trust and the Manager wish to retain the
Portfolio Manager to render investment advisory services hereunder, they shall
promptly notify the Portfolio Manager in writing. If the Portfolio Manager is
willing to render such services, it shall so notify the Trust and Manager in
writing, whereupon such series shall become a Series hereunder, and be subject
to this Agreement.
2. PORTFOLIO MANAGEMENT DUTIES AND AUTHORITY. Subject to the
supervision of the Trust's Board of Trustees and the Manager, the Portfolio
Manager will provide a continuous investment program for each Series' portfolio
and determine, in its discretion, the composition of the assets of each Series'
portfolio, including determination of the purchase, retention, or sale of the
securities, cash, and other investments contained in the portfolio. The
Portfolio Manager will provide investment research and conduct a continuous
program of evaluation, investment, sales, and reinvestment of each Series'
assets by determining the securities and other investments that shall be
purchased, entered into, sold, closed, or exchanged for the Series, when these
transactions should be executed, and what portion of the assets of each Series
should be held in the various securities and other investments in which it may
invest, and the Portfolio Manager is hereby authorized to execute and perform
such services and transactions on behalf of each Series. In accordance with the
forgoing duties, the Portfolio Manager is hereby authorized to act as agent for
the Series to order deposits and the investment of cash and purchases and sales
of securities for the Series' account and in the name of the Trust. This
authorization shall be a continuing one and shall remain in full force and
effect until this Agreement is terminated in accordance with the provisions of
Section 16 hereof. To the extent permitted by the investment policies of each
Series, the Portfolio Manager shall make decisions for the Series as to foreign
currency matters and make determinations as to and execute and perform foreign
currency exchange contracts on behalf of the Series and shall have the authority
to act in such capacity as the Portfolio Manager deems necessary or desirable in
order to carry out its duties hereunder for the Series so long as not expressly
prohibited by the terms of this Agreement, the 1940 Act or other securities laws
or regulations. The Portfolio Manager will provide the services under this
Agreement in accordance with each Series' investment objective or objectives,
policies, and restrictions as stated in the Trust's Registration Statement filed
with the Securities and Exchange Commission ("SEC"), as from time to time
amended (the "Registration Statement"), copies of which shall be sent to the
Portfolio Manager by the Manager prior to the commencement of this Agreement and
promptly upon filing any such amendment with the SEC. The Portfolio Manager
further agrees as follows:
(a) The Portfolio Manager will (1) manage each Series so that no
action or omission on the part of the Portfolio Manager will cause a Series
to fail to meet the income and asset diversification requirements of
Section 851 of the Internal Revenue Code of 1986, as amended (the "Code")
(and the Portfolio Manager is not responsible for the requirements for the
Trust to register under the 1940 Act, to file with its tax return an
election to be a regulated investment company, or any other requirements of
Section 851 of the Code all of which shall be the responsibility of the
Manager), (2) manage each Series so that no action or omission on the part
of the Portfolio Manager shall cause a Series to fail to comply with the
diversification requirements of Section 817(h) of the Code, and the
regulations issued thereunder, and (3) use reasonable efforts to manage the
Series so that no action or omission on the part of the Portfolio Manager
shall cause a Series to fail to comply with any other rules and regulations
pertaining to investment vehicles underlying variable annuity or variable
life insurance policies that the Manger has identified for the Portfolio
Manager. The Manager will notify the Portfolio Manager promptly if the
Manager believes that a Series is in violation of any requirement specified
in the first sentence of this paragraph. The Manager or the Trust will
notify the Portfolio Manager of any pertinent changes, modifications to, or
interpretations of Section 817(h)
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of the Code and regulations issued thereunder and of the other rules or
regulations pertaining to investment vehicles underlying variable annuity
or variable life insurance policies that the Manager has identified for the
Portfolio Manager.
(b) On occasions when the Portfolio Manager deems the purchase or sale
of a security to be in the best interest of a Series as well as of other
investment advisory clients of the Portfolio Manager or any of its
affiliates, the Portfolio Manager may, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate
the securities to be so sold or purchased with those of its other clients
where such aggregation is not inconsistent with the policies set forth in
the Registration Statement. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction,
will be made by the Portfolio Manager in a manner that is fair and
equitable in the judgment of the Portfolio Manager in the exercise of its
fiduciary obligations to the Trust and to such other clients. The Manager
and the Board shall have the right to review the Portfolio Manager's manner
of allocation and to direct that the Portfolio Manager no longer aggregate
securities to be sold or purchased for the Series with securities to be
sold or purchased for the Portfolio Manager's other clients, provided,
however, that any such direction to the Portfolio Manager shall be
implemented on a prospective basis only. The Trust and the Manager
recognize that, in some cases, the Portfolio Manager's allocation procedure
may limit the size of the position that may be acquired or sold for the
Series or adversely affect the price paid or received by the Series.
Similarly, the Trust and the Manager recognize that not aggregating trades
for the Series with trades for other clients of the Portfolio Manager may
also limit the size of the position that may be acquired or sold for the
Series or adversely affect the price paid or received by the Series.
(c) In connection with the purchase and sale of securities for each
Series, the Portfolio Manager will arrange for the transmission to the
custodian and portfolio accounting agent for the Series on a daily basis,
such confirmation, trade tickets, and other documents and information,
including, but not limited to, Cusip, Sedol, or other numbers that identify
securities to be purchased or sold on behalf of the Series, as may be
reasonably necessary to enable the custodian and portfolio accounting agent
to perform their administrative and recordkeeping responsibilities with
respect to the Series. With respect to portfolio securities to be purchased
or sold through the Depository Trust Company, the Portfolio Manager will
arrange for the automatic transmission of the confirmation of such trades
to the Trust's custodian and portfolio accounting agent.
(d) The Portfolio Manager will assist the portfolio accounting agent
for the Trust in determining, consistent with the procedures and policies
stated in the Registration Statement, the value of any portfolio securities
or other assets of the Series for which the portfolio accounting agent
seeks assistance from or identifies for review by the Portfolio Manager.
(e) The Portfolio Manager will make available to the Trust and the
Manager, promptly upon reasonable request, all of the Series' investment
records and ledgers
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maintained by the Portfolio Manager (which shall not include the records
and ledgers maintained by the custodian and portfolio accounting agent for
the Trust) as are necessary to assist the Trust and the Manager to comply
with requirements of the 1940 Act and the Investment Advisers Act of 1940
(the "Advisers Act"), as well as other applicable laws. The Portfolio
Manager will furnish to regulatory authorities having the requisite
authority any information or reports in connection with such services which
may be requested in order to ascertain whether the operations of the Trust
are being conducted in a manner consistent with applicable laws and
regulations.
(f) The Portfolio Manager will provide reports to the Trust's Board of
Trustees for consideration at meetings of the Board on the investment
program for the Series and the issuers and securities represented in the
Series' portfolio, and will furnish the Trust's Board of Trustees with
respect to the Series such periodic and special reports as the Trustees and
the Manager may reasonably request.
(g) In rendering the services required under this Agreement, the
Portfolio Manager may, from time to time, employ or associate with itself
such person or persons as it believes necessary to assist it in carrying
out its obligations under this Agreement. The Portfolio Manager may not
retain, employ or associate itself with any company that would be an
"investment adviser," as that term is defined in the 1940 Act, to the
Series unless the contract with such company is approved by a majority of
the Trust's Board of Trustees and a majority of Trustees who are not
parties to any agreement or contract with such company and who are not
"interested persons," as defined in the 1940 Act, of the Trust, the
Manager, or the Portfolio Manager, or any such company, and is approved by
the vote of a majority of the outstanding voting securities of the
applicable Series of the Trust to the extent required by the 1940 Act. The
Portfolio Manager shall be responsible for making reasonable inquiries and
for reasonably ensuring that no associated person of the Portfolio Manager,
or of any company that the Portfolio Manager has retained, employed, or
with which it has associated, with respect to the investment management of
the Series, to the best of the Portfolio Manager's knowledge, has, in any
material connection with the handling of assets:
(i) been convicted, in the last ten (10) years, of any felony
or misdemeanor arising out of conduct involving embezzlement,
fraudulent conversion, or misappropriation of funds or securities,
involving violations of Sections 1341, 1342, or 1343 of Xxxxx 00,
Xxxxxx Xxxxxx Code, or involving the purchase or sale of any security;
or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged violation
of any provision of any state insurance law involving fraud, deceit, or
knowing misrepresentation; or
(iii) been found by any federal or state regulatory authorities,
within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state securities
laws involving fraud, deceit, or knowing misrepresentation.
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(h) In using spot and forward foreign exchange contracts for the
Series as an investment the parties represent the following:
(i) That the Manager is properly and lawfully established with
full power and authority to enter into spot and forward foreign
exchange contracts, to perform its obligations under such foreign
exchange contracts and to procure the Portfolio Manager to enter into
such foreign exchange contracts on its behalf.
(ii) That the Manager may not, except for purposes of
redemptions, expenses, and other costs of doing business, encumber
funds which the Portfolio Manager has under the Portfolio Manager's
management or which benefit from the Portfolio Manager's investment
advice. If the Manager requires funds from the Series to meet any
redemption requests, Series expenses, and other costs of the Series
doing business, the Portfolio Manager will make funds available from
the Series' assets in a reasonably timely manner for the Manager to
meet such obligations. The Manager reserves the right to segregate
assets upon notice to the Portfolio Manager and provide different
arrangements for investment management with respect to those assets.
(iii) That the Portfolio Manager has been granted full power and
authority to enter into foreign exchange contracts as agent on the
Manager's behalf and to give instructions for settlement for the same.
(iv) That the Portfolio Manager has full authority to instruct
the Trust's custodian in conformity with its mandate.
(v) That in the event of the termination of this Agreement, the
Portfolio Manager may, if legally and operationally possible, offer the
Series' counterparty the option to leave open any existing foreign
exchange contracts or to close them out at prevailing market rates.
3. BROKER-DEALER SELECTION. The Portfolio Manager is hereby authorized
to place orders for the purchase and sale of securities and other investments
for each Series' portfolio, with or through such persons, brokers or dealers of
its choosing and to negotiate commissions to be paid on such transactions and to
supervise the execution thereof. The Portfolio Manager's primary consideration
in choosing a broker or dealer to effect any such transaction will be to obtain
the best execution for the Series, taking into account the factors specified in
the Registration Statement, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation, the
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firms involved, and the firm's risk in positioning
a block of securities. Accordingly, the price to a Series in any transaction may
be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Portfolio Manager in
the exercise of its fiduciary obligations to the Trust, by other aspects of the
portfolio execution services offered.
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Subject to such policies as the Board of Trustees may determine and
consistent with Section 28(e) of the Securities Exchange Act of 1934, the
Portfolio Manager may effect a transaction on behalf of the Series with a
broker-dealer who provides brokerage and research services to the Portfolio
Manager notwithstanding the fact that the commissions payable with respect to
any such transaction may be greater than the amount of any commission another
broker-dealer might have charged for effecting that transaction, if the
Portfolio Manager determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker-dealer, viewed in terms of either that particular
transaction or the Portfolio Manager's or its affiliate's overall
responsibilities with respect to the Series and to its other clients as to which
it exercises investment discretion.
The Portfolio Manager may, in consultation with the Manager and
consistent with best execution, direct portfolio transactions to broker-dealers
that participate in commission recapture programs that benefit the Series, but
not the Manager or the Portfolio Manager. To the extent consistent with this
Agreement, the Portfolio Manager is further authorized to allocate orders placed
by it on behalf of the Series to the Portfolio Manager as agent if it is
registered as a broker-dealer with the SEC or to any of its affiliated
broker-dealers as agents. Such allocation shall be in such amounts and
proportions as the Portfolio Manager shall determine consistent with the above
standards, and the Portfolio Manager will report on said allocation regularly to
the Board indicating the broker-dealers to which such allocations have been made
and will provide such other information on the allocations as the Board may
reasonably request.
4. DISCLOSURE ABOUT PORTFOLIO MANAGER. The Portfolio Manager has
reviewed the post-effective amendment to the Registration Statement for the
Trust filed with the SEC that contains disclosure about the Portfolio Manager,
and represents and warrants that, with respect to the disclosure about or
information relating, directly or indirectly, to the Portfolio Manager, to the
Portfolio Manager's knowledge, such Registration Statement contains, as of the
date hereof, no untrue statement of any material fact and does not omit any
statement of a material fact which was required to be stated therein or
necessary to make the statements contained therein not misleading. The Portfolio
Manager further represents and warrants that it is a duly registered investment
adviser under the Advisers Act, or alternatively that it is not required to be a
registered investment adviser under the Advisers Act to perform the duties
described in this Agreement, and that it is a duly registered investment adviser
in all states in which the Portfolio Manager is required to be registered and
will maintain such registration so long as this Agreement remains in effect. The
Portfolio Manager will provide the Manager with a copy of the Portfolio
Manager's Form ADV, Part II at the time the Form ADV and any amendment is filed
with the SEC, and a copy of its written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act, together with evidence of its
adoption
5. EXPENSES. During the term of this Agreement, the Portfolio Manager
will pay all expenses incurred by it and its staff and for their activities in
connection with its portfolio management duties under this Agreement. The
Manager or the Trust shall be responsible for all the expenses of the Trust's
operations including, but not limited to:
(a) Expenses of all audits by the Trust's independent public
accountants;
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(b) Expenses of the Series' transfer agent, registrar, dividend
disbursing agent, and shareholder recordkeeping services;
(c) Expenses of the Series' custodial services including recordkeeping
services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value of each
Series' net assets;
(e) Expenses of obtaining Portfolio Activity Reports and Analyses of
International Management Reports (as appropriate) for each Series;
(f) Expenses of maintaining the Trust's tax records;
(g) Salaries and other compensation of any of the Trust's executive
officers and employees, if any, who are not officers, directors,
stockholders, or employees of the Portfolio Manager or an affiliate of the
Portfolio Manager;
(h) Taxes levied against the Trust;
(i) Brokerage fees and commissions, transfer fees, registration fees,
taxes and similar liabilities and costs properly payable or incurred in
connection with the purchase and sale of portfolio securities for the
Series;
(j) Costs, including the interest expense, of borrowing money;
(k) Costs and/or fees incident to meetings of the Trust's
shareholders, the preparation and mailings of prospectuses and reports of
the Trust to its shareholders, the filing of reports with regulatory
bodies, the maintenance of the Trust's existence, and the regulation of
shares with federal and state securities or insurance authorities;
(l) The Trust's legal fees, including the legal fees related to the
registration and continued qualification of the Trust's shares for sale;
(m) Trustees' fees and expenses of trustees who are not officers,
employees, or stockholders of the Portfolio Manager or any affiliate
thereof;
(n) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(o) Association membership dues;
(p) Extraordinary expenses of the Trust as may arise including
expenses incurred in connection with litigation, proceedings, and other
claims (unless the Portfolio Manager is responsible for such expenses under
Section 13 of this Agreement), and the
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legal obligations of the Trust to indemnify its Trustees, officers,
employees, shareholders, distributors, and agents with respect thereto; and
(q) Organizational and offering expenses.
6. COMPENSATION. For the services provided to each Series, the Manager
will pay the Portfolio Manager a fee, payable as described in SCHEDULE A.
The fee will be prorated to reflect any portion of a calendar month that
this Agreement is not in effect among the parties. In accordance with the
provisions of the Management Agreements, the Manager is solely responsible for
the payment of fees to the Portfolio Manager, and the Portfolio Manager agrees
to seek payment of its fees solely from the Manager.
7. SEED MONEY. The Manager agrees that the Portfolio Manager shall not be
responsible for providing money for the initial capitalization of the Series.
8. COMPLIANCE.
(a) The Trust and the Manager acknowledge that the Portfolio Manager is
not the compliance agent for any Series or for the Trust or the Manager,
and does not have access to all of each Series' books and records necessary
to perform certain compliance testing. To the extent that the Portfolio
Manager has agreed to perform the services specified in Section 2 in
accordance with the Trust's registration statement, the Trust's Amended and
Restated Agreement and Declaration of Trust and By-Laws, the Trust's
Prospectus and any policies adopted by the Trust's Board of Trustees
applicable to the Series (collectively, the "Charter Requirements"), and in
accordance with applicable law (including Subchapters M and L of the Code,
the 1940 Act and the Advisers Act ("Applicable Law")), the Portfolio
Manager shall perform such services based upon its books and records with
respect to each Series, which comprise a portion of each Series' books and
records, and upon information and written instructions received from the
Trust, the Manager or the Trust's administrator, and shall not be held
responsible under this Agreement so long as it performs such services in
accordance with this Agreement, the Charter Requirements and Applicable Law
based upon such books and records and such information and instructions
provided by the Trust, the Manager, or the Trust's administrator. The
Manager shall promptly provide the Portfolio Manager with copies of the
Trust's registration statement, the Trust's Amended and Restated Agreement
and Declaration of Trust and By-Laws, the Trust's currently effective
Prospectus and any written policies and procedures adopted by the Trust's
Board of Trustees applicable to the Portfolio and any amendments or
revisions thereto. The Portfolio Manager agrees that it shall promptly
notify the Manager and the Trust (1) in the event that the SEC or other
governmental authority has censured the Portfolio Manager; placed
limitations upon its activities, functions or operations; suspended or
revoked its registration, if any, as an investment adviser; or has
commenced proceedings or an investigation that may result in any of these
actions, (2) upon having a reasonable basis for believing that the Series
has ceased to comply with the income and asset diversifications of Section
851 of the Code, or (3) upon having a reasonable basis for believing that
the Series has ceased to
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comply with the diversification provisions of Section 817(h) of the Code or
the regulations thereunder. The Portfolio Manager further agrees to notify
the Manager and the Trust promptly of any material fact known to the
Portfolio Manager respecting or relating to the Portfolio Manager that is
not contained in the Registration Statement as then in effect, and is
required to be stated therein or necessary to make the statements therein
not misleading, or of any statement contained therein that becomes untrue
in any material respect.
(b) The Manager agrees that it shall immediately notify the Portfolio
Manager (1) in the event that the SEC has censured the Manager or the
Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Manager's registration as an
investment adviser; or has commenced proceedings or an investigation that
may result in any of these actions, (2) upon having a reasonable basis for
believing that the Series has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code, or (3) upon
having a reasonable basis for believing that the Series has ceased to
comply with the diversification provisions of Section 817(h) of the Code or
the regulations thereunder.
9. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Portfolio Manager hereby agrees that all records which
it maintains for the Series are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's or the
Manager's reasonable request, although the Portfolio Manager may, at its own
expense, make and retain a copy of such records. The Portfolio Manager further
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
the records required to be maintained by Rule 31a-l under the 1940 Act and to
preserve the records required by Rule 204-2 under the Advisers Act for the
period specified in such rules.
10. COOPERATION; CONFIDENTIALITY.
(a) Each party to this Agreement agrees to cooperate with each other
party and with all appropriate governmental authorities having the
requisite jurisdiction (including, but not limited to, the SEC and state
insurance regulators) in connection with any investigation or inquiry
relating to this Agreement or the Trust.
(b) Subject to paragraphs (a), (c) and (d) of this Section 10, the
Portfolio Manager will treat confidentially and as proprietary information
of the Trust all such records and other information related to the Trust
maintained by the Portfolio Manager, and will not use such records and
information for any purpose other than performance of its responsibilities
and duties hereunder, except after prior notification to and approval in
writing by the Trust, which approval shall not be unreasonably withheld,
provided, however, that notwithstanding the foregoing, the Portfolio
Manager may disclose such information as required by applicable law,
regulation or upon request by a regulator or auditor of the Portfolio
Manager.
(c) To the extent that any market counterparty with whom the Portfolio
Manager deals requires information relating to the Series (including, but
not limited to,
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the identity of the Series and market value of the Series), the Portfolio
Manager shall be permitted to disclose such information to the extent
necessary to effect transactions on behalf of the Series in accordance with
the terms of this Agreement.
(d) The Trust and the Manager acknowledge that any information or
recommendation supplied by, or produced by, the Portfolio Manager in
connection with the performance of its obligations hereunder is to be
regarded by the Trust and the Manager as confidential and for use only by
the Manager and the Trust. Furthermore, except as required by law
(including, but not limited to semi-annual, annual or other filings made
under the 0000 Xxx) or as agreed to by the Manager and Portfolio Manager,
the Manager and the Trust will not disclose, in any manner whatsoever
except as expressly authorized in this Agreement, any list of securities
held by the Series until such list of securities is filed with the SEC,
mailed out to shareholders or posted on the Trust's Web site, which filing,
mailing or posting shall not be made sooner than 30 days after calendar
quarter end, except that the Series' top 10 holdings may be disclosed 16
days after month end. In addition, at the end of each calendar quarter, the
Manager may disclose, earlier than 30 days after calendar quarter end, a
list of the securities purchased or sold by the Series during the calendar
quarter to certain third party data or service providers who have entered
into a confidentiality agreement with the Manager.
11. REPRESENTATIONS RESPECTING PORTFOLIO MANAGER.
(a) During the term of this Agreement, the Trust and the Manager agree
to furnish to the Portfolio Manager at its principal offices prior to use
thereof copies of all Registration Statements and amendments thereto,
prospectuses, proxy statements, reports to shareholders, sales literature
or other material prepared for distribution to shareholders of the Trust or
any Series or to the public that refer or relate in any way to the
Portfolio Manager or any of its affiliates (other than the Manager), or
that use any derivative of the names "X.X. Xxxxxx Xxxxxxx Asset Management"
"X.X. Xxxxxx Chase & Co.," or "X.X. Xxxxxx Investment Management Inc." or
any logos associated therewith. The Trust and the Manager agree that they
will not use any such material without the prior consent of the Portfolio
Manager, which consent shall not be unreasonably withheld. In the event of
the termination of this Agreement, the Trust and the Manager will furnish
to the Portfolio Manager copies of any of the above-mentioned materials
that refer or relate in any way to the Portfolio Manager;
(b) The Trust and the Manager will furnish to the Portfolio Manager
such information relating to either of them or the business affairs of the
Trust as the Portfolio Manager shall from time to time reasonably request
in order to discharge its obligations hereunder;
(c) The Manager and the Trust agree that neither the Trust, the
Manager, nor affiliated persons of the Trust or the Manager shall give any
information or make any representations or statements in connection with
the sale of shares of the Series concerning the Portfolio Manager or the
Series other than the information or representations contained in the
Registration Statement, prospectus, or statement of
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Additional information for the Trust, as they may be amended or
supplemented from time to time, or in reports or proxy statements for the
Trust, or in sales literature or other promotional material approved in
advance by the Portfolio Manager, except with the prior permission of the
Portfolio Manager.
12. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Portfolio Manager are not exclusive, and nothing in this Agreement shall prevent
the Portfolio Manager (or its affiliates) from providing similar services to
other clients, including investment companies (whether or not their investment
objectives and policies are similar to those of the Series) or from engaging in
other activities.
13. PROHIBITED CONDUCT. The Portfolio Manager may not consult with any
other portfolio manager of the Trust concerning transactions in securities or
other assets for any investment portfolio of the Trust, including the Series,
except that such consultations are permitted between the current and successor
portfolio managers of the Series in order to effect an orderly transition of
portfolio management duties so long as such consultations are not concerning
transactions prohibited by Section 17(a) of the 1940 Act.
14. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Trust and the Manager agree that
the Portfolio Manager, any affiliated person of the Portfolio Manager, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Portfolio Manager (1) shall bear no responsibility and shall not be subject
to any liability for any act or omission respecting any series of the Trust that
is not a Series hereunder; and (2) shall not be liable for any error of
judgment, mistake of law, any diminution in value of the investment portfolio of
the Series, or subject to any damages, expenses, or losses in connection with,
any act or omission connected with or arising out of any services rendered under
this Agreement, except by reason of willful misfeasance, bad faith, or gross
negligence in the performance by the Portfolio Manager of its duties, or by
reason of reckless disregard by the Portfolio Manager of its obligations and
duties under this Agreement.
The Portfolio Manager does not guarantee the future performance of the
Series or any specific level of performance, the success of any investment
decision or strategy that the Portfolio Manager may use, or the success of the
Portfolio Manager's overall management of the Series. The Trust and the Manager
understand that investment decisions made for the Series by the Portfolio
Manager are subject to various market, currency, economic, political and
business risks, and that those investment decisions will not always be
profitable. The Portfolio Manager will manage only the assets of the Series
allocated to its management by the Manager and in making investment decisions
for the Series.
15. INDEMNIFICATION.
(a) Notwithstanding Section 14 of this Agreement, the Manager agrees
to indemnify and hold harmless the Portfolio Manager, any affiliated person
of the Portfolio Manager (other than the Manager), and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls
("controlling person") the Portfolio Manager (all of such persons being
referred to as "Portfolio Manager Indemnified Persons") against any
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and all losses, claims, damages, liabilities, or litigation (including
legal and other expenses) to which a Portfolio Manager Indemnified Person
may become subject under the 1933 Act, the 1940 Act, the Advisers Act, the
Code, under any other statute, at common law or otherwise, howsoever
arising from or in connection with this Agreement or the performance by the
Portfolio Manager of its duties under this Agreement, provided, however,
the Portfolio Indemnified Persons shall not be indemnified against losses,
damages, liabilities or litigation (including legal and other expenses)
arising out of (1) Portfolio Manager's, including without limitation any of
its employees or representatives or any affiliate of or any person acting
on behalf of the Portfolio Manager, willful misfeasance, bad faith, or
negligence in the performance of the Portfolio Manager's duties, or by
reason of the Portfolio Manager's reckless disregard of its obligations and
duties under this Agreement, or (2) which are based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or
which is the responsibility of, the Portfolio Manager and contained in the
Registration Statement or prospectus covering shares of the Trust or any
Series, or any amendment thereof or any supplement thereto, or the omission
or alleged omission to state therein a material fact known or which should
have been known to the Portfolio Manager and was required to be stated
therein or necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon information furnished
to the Portfolio Manager or the Trust or to any affiliated person of the
Portfolio Manager by the Manager.
(b) Notwithstanding Section 14 of this Agreement, the Portfolio
Manager agrees to indemnify and hold harmless the Manager, any affiliated
person of the Manager (other than the Portfolio Manager), and each person,
if any, who, is a controlling person of the Manager (all of such persons
being referred to as "Manager Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal and
other expenses) to which a Manager Indemnified Person may become subject
under the 1933 Act, 1940 Act, the Advisers Act, the Code, under any other
statute, at common law or otherwise arising out of (i) the Portfolio
Manager's, including without limitation any of its employees or
representatives or any affiliate of or any person acting on behalf of the
Portfolio Manager, willful misfeasance, bad faith, or negligence in the
performance of the Portfolio Manager's duties, or by reason of the
Portfolio Manager's reckless disregard of its obligations and duties under
this Agreement, or (2) any breach of any representations or warranties
contained in Section 4; provided, however, that in no case shall the
indemnity in favor of a Manager Indemnified Person be deemed to protect
such person against any liability to which any such person would otherwise
be subject by reason of willful misfeasance, bad faith, negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement.
(c) None of the Trust, the Manager or the Portfolio Manager shall be
liable for any special, consequential or incidental damages.
(d) The Manager shall not be liable under Paragraph (a) of this
Section 15 with respect to any claim made against a Portfolio Manager
Indemnified Person unless such Portfolio Manager Indemnified Person shall
have notified the Manager in writing within a reasonable time after the
summons, notice, or other first legal process or notice
12
giving information of the nature of the claim shall have been served upon
such Portfolio Manager Indemnified Person (or after such Portfolio Manager
Indemnified Person shall have received notice of such service on any
designated agent), but failure to notify the Manager of any such claim
shall not relieve the Manager from any liability which it may have to the
Portfolio Manager Indemnified Person against whom such action is brought
except to the extent the Manager is prejudiced by the failure or delay in
giving such notice. In case any such action is brought against the
Portfolio Manager Indemnified Person, the Manager will be entitled to
participate, at its own expense, in the defense thereof or, after notice to
the Portfolio Manager Indemnified Person, to assume the defense thereof,
with counsel satisfactory to the Portfolio Manager Indemnified Person. If
the Manager assumes the defense of any such action and the selection of
counsel by the Manager to represent both the Manager and the Portfolio
Manager Indemnified Person would result in a conflict of interests and
therefore, would not, in the reasonable judgment of the Portfolio Manager
Indemnified Person, adequately represent the interests of the Portfolio
Manager Indemnified Person, the Manager will, at its own expense, assume
the defense with counsel to the Manager and, also at its own expense, with
separate counsel to the Portfolio Manager Indemnified Person, which counsel
shall be satisfactory to the Manager and to the Portfolio Manager
Indemnified Person. The Portfolio Manager Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Manager
shall not be liable to the Portfolio Manager Indemnified Person under this
Agreement for any legal or other expenses subsequently incurred by the
Portfolio Manager Indemnified Person independently in connection with the
defense thereof other than reasonable costs of investigation. The Manager
shall not, without the prior written consent of each Portfolio Manager
Indemnified Person, settle or compromise the liability of any Portfolio
Manager Indemnified Person in any such action, or permit a default or
consent to the entry of any judgment in respect thereof, unless in
connection with such settlement, compromise or consent each Portfolio
Manager Indemnified Person receives from such claimant an unconditional
release from all liability in respect of such claim.
(e) The Portfolio Manager shall not be liable under Paragraph (b) of
this Section 15 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have
notified the Portfolio Manager in writing within a reasonable time after
the summons, notice, or other first legal process or notice giving
information of the nature of the claim shall have been served upon such
Manager Indemnified Person (or after such Manager Indemnified Person shall
have received notice of such service on any designated agent), but failure
to notify the Portfolio Manager of any such claim shall not relieve the
Portfolio Manager from any liability which it may have to the Manager
Indemnified Person against whom such action is brought except to the extent
the Portfolio Manager is prejudiced by the failure or delay in giving such
notice. In case any such action is brought against the Manager Indemnified
Person, the Portfolio Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Manager Indemnified
Person, to assume the defense thereof, with counsel satisfactory to the
Manager Indemnified Person. If the Portfolio Manager assumes the defense of
any such action and the selection of counsel by the Portfolio Manager to
represent both the Portfolio Manager and the Manager Indemnified Person
13
would result in a conflict of interests and therefore, would not, in the
reasonable judgment of the Manager Indemnified Person, adequately represent
the interests of the Manager Indemnified Person, the Portfolio Manager
will, at its own expense, assume the defense with counsel to the Portfolio
Manager and, also at its own expense, with separate counsel to the Manager
Indemnified Person, which counsel shall be satisfactory to the Portfolio
Manager and to the Manager Indemnified Person. The Manager Indemnified
Person shall bear the fees and expenses of any additional counsel retained
by it, and the Portfolio Manager shall not be liable to the Manager
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Manager Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Portfolio Manager shall not, without the prior written
consent of each Manager Indemnified Person, settle or compromise the
liability of any Manager Indemnified Person in any such action, or permit a
default or consent to the entry of any judgment in respect thereof, unless
in connection with such settlement, compromise or consent each Manager
Indemnified Person receives from such claimant an unconditional release
from all liability in respect of such claim.
(f) The Manager shall not be liable under this Section 15 to indemnify
and hold harmless the Portfolio Manager and the Portfolio Manager shall not
be liable under this Section 15 to indemnify and hold harmless the Manager
with respect to any losses, claims, damages, liabilities, or litigation
that first become known to the party seeking indemnification during any
period that the Portfolio Manager is, within the meaning of Section 15 of
the 1933 Act, a controlling person of the Manager.
16. DURATION AND TERMINATION. This Agreement shall become effective with
respect to each Series on the later of the date first indicated above or the
date of the commencement of operations of each Series. Unless terminated as
provided herein, the Agreement shall remain in full force and effect until
NOVEMBER 30, 2006 and continue on an annual basis thereafter with respect to
each Series; provided that such annual continuance is specifically approved each
year by (a) the vote of a majority of the entire Board of Trustees of the Trust,
or by the vote of a majority of the outstanding voting securities (as defined in
the 0000 Xxx) of each Series, and (b) the vote of a majority of those Trustees
who are not parties to this Agreement or interested persons (as such term is
defined in the 0000 Xxx) of any such party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval. The Portfolio Manager
shall not provide any services for such Series or receive any fees on account of
such Series with respect to which this Agreement is not approved as described in
the preceding sentence. However, any approval of this Agreement by the holders
of a majority of the outstanding shares (as defined in the 0000 Xxx) of a Series
shall be effective to continue this Agreement with respect to such Series
notwithstanding (i) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Series or (ii) that this
agreement has not been approved by the vote of a majority of the outstanding
shares of the Trust, unless such approval shall be required by any other
applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated for each or
any Series hereunder: (a) by the Manager at any time without penalty, upon sixty
(60) days' written notice to the Portfolio Manager and the Trust, (b) at any
time without payment of any penalty by the
14
Trust, upon the vote of a majority of the Trust's Board of Trustees or a
majority of the outstanding voting securities of each Series, upon sixty (60)
days' written notice to the Manager and the Portfolio Manager, or (c) by the
Portfolio Manager at any time without penalty, upon three (3) months' written
notice to the Manager and the Trust, unless the Manager or the Trust requests
additional time to find a replacement for the Portfolio Manager, in which case
the Portfolio Manager shall allow the additional time requested by the Trust or
the Manager not to exceed three (3) months beyond the initial three-month notice
period; provided however, that the Portfolio Manager may terminate this
Agreement at any time without penalty effective upon written notice to the
Manager and the Trust, in the event either the Portfolio Manager (acting in good
faith) or the Manager ceases to be registered as an investment adviser under the
Advisers Act or otherwise becomes legally incapable of providing investment
management services pursuant to its respective contract with the Trust, or in
the event the Manager becomes bankrupt or otherwise incapable of carrying out
its obligations under this Agreement, or in the event that the Portfolio Manager
does not receive compensation for its services from the Manager or the Trust as
required by the terms of this Agreement. In addition, this Agreement shall
terminate with respect to a Series in the event that it is not approved by the
vote of a majority of the outstanding voting securities of that Series at a
meeting of shareholders at which approval of the Agreement shall be considered
by shareholders of the Series.
In the event of termination for any reason, all records of each Series for
which the Agreement is terminated shall promptly be returned to the Manager or
the Trust, free from any claim or retention of rights in such records by the
Portfolio Manager, although the Portfolio Manager may, at its own expense, make
and retain a copy of such records. The Agreement shall automatically terminate
in the event of its assignment (as such term is described in the 1940 Act). In
the event this Agreement is terminated or is not approved in the manner
described above, the Sections or Paragraphs numbered 2(e), 9, 10, 11, 14, 15,
and 19 of this Agreement shall remain in effect, as well as any applicable
provision of this Paragraph numbered 16.
17. NOTICES. Any notice must be in writing and shall be sufficiently given
(1) when delivered in person, (2) when dispatched by telegram or electric
facsimile transfer (confirmed in writing by postage prepaid first class mail
simultaneously dispatched), (3) when sent by internationally recognized
overnight courier service (with receipt confirmed by such overnight courier
service), or (4) when sent by registered or certified mail, to the other party
at the address of such party set forth below or at such other address as such
party may from time to time specify in writing to the other party.
If to the Trust:
ING Investors Trust
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Counsel
15
If to the Manager:
Directed Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Counsel
If to the Portfolio Manager:
X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Mutual Funds - Legal
18. AMENDMENTS. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (i) the Trustees of the Trust,
including a majority of the Trustees of the Trust who are not interested persons
of any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval, if such approval is required by applicable
law; and (ii) the holders of a majority of the outstanding voting securities of
the Series.
19. USE OF NAME.
(a) It is understood that the name "Directed Services, Inc." or any
derivative thereof or logo associated with that name is the valuable
property of the Manager and/or its affiliates, and that the Portfolio
Manager has the right to use such name (or derivative or logo) only with
the approval of the Manager and only so long as the Manager is Manager to
the Trust and/or the Series. Upon termination of either Management
Agreement between the Trust and the Manager, the Portfolio Manager shall as
soon as is reasonably possible cease to use such applicable name (or
derivative or logo).
(b) It is understood that the names "X.X. Xxxxxx Xxxxxxx Asset
Management," "X.X. Xxxxxx Chase & Co.," or "X.X. Xxxxxx Investment
Management Inc.," or any derivative thereof or logos associated with those
names are the valuable property of the Portfolio Manager and its affiliates
and that the Trust and/or the Series have the right to use such names (or
derivatives or logos) in the names of the Series and in offering materials
of the Trust with the approval of the Portfolio Manager and for so long as
the Portfolio Manager is a portfolio manager to the Trust and/or the
Series. Upon termination of this Agreement between the Trust, the Manager,
and the Portfolio Manager, the Trust shall as soon as is reasonably
possible cease to use such names (or derivatives or logos) in the names of
the Series or in the Series offering materials.
16
20. AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST. A copy of the
Amended and Restated Agreement and Declaration of Trust for the Trust is on file
with the Secretary of the Commonwealth of Massachusetts. The Amended and
Restated Agreement and Declaration of Trust has been executed on behalf of the
Trust by Trustees of the Trust in their capacity as Trustees of the Trust and
not individually. The obligations of this Agreement shall be binding upon the
assets and property of the Trust and shall not be binding upon any Trustee,
officer, or shareholder of the Trust individually.
21. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania, without giving effect to the provisions, policies or
principals thereof relating to choice or conflict of laws, provided that
nothing herein shall be construed in a manner inconsistent with the 1940
Act, the Advisers Act or rules or orders of the SEC thereunder. The term
"affiliate" or "affiliated person" as used in this Agreement shall mean
"affiliated person" as defined in Section 2(a)(3) of the 0000 Xxx.
(b) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(c) To the extent permitted under Section 16 of this Agreement, this
Agreement may only be assigned by any party with the prior written consent
of the other parties.
(d) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby, and to this extent, the provisions
of this Agreement shall be deemed to be severable.
(e) Nothing herein shall be construed as constituting the Portfolio
Manager as an agent of the Manager, or constituting the Manager as an agent
of the Portfolio Manager.
(f) This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
ING INVESTORS TRUST
By: /s/ Xxxxxx X. Naka
-----------------------------------
Name: Xxxxxx X. Naka
-----------------------------------
Title: Senior Vice President
-----------------------------------
DIRECTED SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx L/ Xxxxxxxx
-----------------------------------
Title: SVP
-----------------------------------
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
18
SCHEDULE A
COMPENSATION FOR SERVICES TO SERIES
For the services provided by X.X. Xxxxxx Investment Management Inc.
(successor to X.X. Xxxxxx Xxxxxxx Asset Management (U.S.A.) Inc.) (the
"Portfolio Manager") to the following Series of ING Investors Trust, pursuant to
the attached Amended and Restated Portfolio Management Agreement, the Manager
will pay the Portfolio Manager a fee, computed daily and payable monthly, based
on the average daily net assets of the Series at the following annual rates of
the average daily net assets of the Series:
SERIES FEES
------ ----
ING JPMorgan Emerging Markets Equity Portfolio 0.60% on first $75 million;
0.50% on next $75 million;
0.40% on next $350 million
0.35% thereafter(1)
ING JPMorgan Small Cap Equity Portfolio 0.55% on first $200 million;
0.50% on next $300 million; and
0.45% thereafter
ING JPMorgan Value Opportunities Portfolio 0.40% on first $50 million;
0.30% on next $50 million; and
0.25% thereafter
If the Manager or any of its affiliates appoints the Portfolio Manager or any of
its affiliates to manage another portfolio(s) following the Portfolio Manager's
"Small Cap Equity" investment strategy ("New Portfolio"), the assets of the New
Portfolio will be aggregated with the assets of the Series in calculating the
Portfolio Manager's fee at the above stated rate.
The Portfolio Manager has agreed to the above fee schedule and to aggregate the
assets of any New Portfolio in calculating its fees based upon the Portfolio
Manager and its affiliates receiving a total of at least $100 million in the
portfolios it and its affiliates manage for the Manager and its affiliates;
provided, in addition, that at least $50 million of such assets will be in
portfolios following the Portfolio Manager's affiliate's "EAFE Plus" strategy.
----------
(1) For purposes of calculating fees under this Agreement, the assets of ING
JPMorgan Emerging Markets Equity Portfolio shall be aggregated with the assets
of ING VP Emerging Markets Fund, a series of ING VP Emerging Markets Fund, Inc.,
which is not a party to this Agreement.
19
