Exhibit (d)(2)(CC)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 28th day of April, 2006, among ING Investors Trust (the
"Trust"), a Massachusetts business trust, Directed Services, Inc. (the
"Adviser"), a New York corporation, and Franklin Advisers, Inc. (the
"Sub-Adviser"), a corporation organized under the laws of the State of
California (the "Agreement").
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 an Investment Advisory Agreement, effective as of
April 29, 2005, a copy of which has been provided to the Sub-Adviser, the Trust
has retained the Adviser to render advisory, management, and administrative
services with respect to the Trust's series;
WHEREAS, the Trust and the Adviser wish to retain the Sub-Adviser to
furnish investment advisory services to one or more of the series of the Trust
and the Sub-Adviser is willing to furnish such services to the Trust and the
Adviser.
NOW THEREFORE, in consideration of the premises and the promises and mutual
covenants herein contained, it is agreed between the Trust, the Adviser, and the
Sub-Adviser as follows:
1. APPOINTMENT. The Trust and the Adviser hereby appoint the Sub-Adviser to
act as the sub-adviser 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 Sub-Adviser 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 Adviser wish to retain the Sub-Adviser
to render investment advisory services hereunder, they shall promptly notify the
Sub-Adviser in writing. If the Sub-Adviser is willing to render such services,
it shall so notify the Trust and Adviser 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 (the "Board")
and the Adviser, the Sub-Adviser will provide a continuous investment program
for each Series' portfolio and determine 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 Sub-Adviser 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 Sub-Adviser is hereby authorized, as agent and
attorney in fact for the Trust to execute and perform such services on behalf of
each Series. To the extent permitted by the investment policies of the Series,
the Sub-Adviser shall make decisions for the Series as to foreign currency
matters. The Sub-Adviser will provide the services under this Agreement in
accordance with the Series' investment objective or objectives, policies, and
restrictions as stated in the Trust's Registration Statement filed with the
Securities and Exchange Commission (the "SEC"), as from time to time amended
(the "Registration Statement"), copies of which shall be sent to the Sub-Adviser
by the Adviser upon filing with the SEC. The Sub-Adviser is authorized to
exercise tender offers and exchange offers on behalf of the Series, each as the
Sub-Adviser determines is in the best interest of the Series. The Sub-Adviser
and Adviser further agree as follows:
(a) The Sub-Adviser will, based upon information readily available to
it, (1) manage each Series so that no action or omission on the part of the
Sub-Adviser will cause a Series to fail to meet the requirements to qualify as a
regulated investment company specified in Section 851 of the Internal Revenue
Code of 1986, as amended (the "Code") (other than the requirements for the Trust
to register under the 1940 Act and to file with its tax return an election to be
a regulated investment company and to file with its tax return an election to be
a regulated investment company and satisfy the distribution requirements under
Section 852 (a) of the Internal Revenue Code, all of which shall not be the
responsibility of the Sub-Adviser), (2) manage each Series so that no action or
omission on the part of the Sub-Adviser 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 Sub-Adviser 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. The Adviser shall perform periodic compliance testing to determine
whether each Series is in compliance with Subchapter M and shall promptly notify
the Sub-Adviser of any non-compliance or potential non-compliance with either
the Adviser's policies and restrictions or the diversification requirements of
Subchapter M. Upon notification, the Sub-Adviser shall take appropriate action
to address such non-compliance.
(b) On occasions when the Sub-Adviser 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 Sub-Adviser or any of its affiliates, the Sub-Adviser
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 Sub-Adviser in a manner that is fair and
equitable in the judgment of the Sub-Adviser in the exercise of its fiduciary
obligations to the Trust and to such other clients, provided, however that the
Adviser and the Board shall have the right to review and request changes to the
Sub-Adviser's manner of
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allocation, provided further that any requested changes to such manner of
allocation shall be implemented on a prospective basis only.
(c) In connection with the purchase and sale of securities for each
Series, the Sub-Adviser 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 Sub-Adviser will arrange for the transmission of the confirmation
of such trades to the Trust's custodian and portfolio accounting agent.
(d) The Sub-Adviser will assist the portfolio accounting agent for the
Trust or the Adviser in determining or confirming, 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
Sub-Adviser.
(e) The Sub-Adviser will make available to the Trust and the Adviser,
promptly upon reasonable request, all of the Series' investment records and
ledgers maintained by the Sub-Adviser (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 Adviser to comply with
requirements of the 1940 Act and the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), as well as other applicable laws. The Sub-Adviser 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 Sub-Adviser will provide reports to the Trust's Board 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 with respect to the Series such periodic and special
reports as the Trustees and the Adviser may reasonably request.
(g) In rendering the services required under this Agreement, the
Sub-Adviser may, from time to time, employ or associate with itself such
affiliated or unaffiliated person or persons as it believes necessary to assist
it in carrying out its obligations under this Agreement. The Sub-Adviser 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 and a
majority 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
Adviser, or the Sub-Adviser, 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 Sub-Adviser shall be
responsible for making reasonable inquiries and for reasonably ensuring that no
associated person of the Sub-Adviser, or of any company that the Sub-Adviser has
retained, employed, or with which it has
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associated with respect to the investment management of the Series, to the best
of the Sub-Adviser's knowledge, had 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.
(h) In using spot and forward foreign exchange contracts for the
Series as an investment the parties represent the following:
(i) That the Adviser 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 Sub-Adviser to enter into such foreign
exchange contracts on its behalf.
(ii) That the Adviser may not, except for purposes of redemptions,
expenses, and other costs of doing business, encumber funds which the
Sub-Adviser has under the Sub-Adviser's management or which benefit
from the Sub-Adviser's investment advice. If the Adviser requires
funds for any redemptions, expenses, and other costs of doing
business, the Sub-Adviser will make funds available in a reasonably
timely manner for the Adviser to meet such obligations. The Adviser
reserves the right to segregate assets upon notice to the Sub-Adviser
and provide different arrangements for investment management with
respect to those assets.
(iii) That the Sub-Adviser has been granted full power and authority
to enter into foreign exchange contracts as agent on the Adviser's
behalf and to give instructions for settlement for the same.
(iv) That the Sub-Adviser has full authority to instruct Adviser's
and Trust's custodian in conformity with its mandate.
(v) That in the event of the termination of this Agreement, the
Sub-Adviser, if legally and operationally possible, may offer the
Series' counterparty the option to leave open any existing foreign
exchange contracts or to close them out at prevailing market rates.
(i) The Sub-Adviser will have no duty to vote any proxy solicited by
or with respect to the issuers of securities in which assets of the Series are
invested unless the Adviser
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gives the Sub-Adviser written instructions to the contrary. The Sub-Adviser will
immediately forward any proxy solicited by or with respect to the issuers of
securities in which assets of the Series are invested to the Adviser or to any
agent of the Adviser designated by the Adviser in writing.
The Sub-Adviser will make appropriate personnel available for
consultation for the purpose of reviewing with representatives of the Adviser
and/or the Board any proxy solicited by or with respect to the issuers of
securities in which assets of the Series are invested. Upon request, the
Sub-Adviser will submit a written voting recommendation to the Adviser for such
proxies. In making such recommendations, the Sub-Adviser shall use its good
faith judgment to act in the best interests of the Series. The Sub-Adviser shall
disclose to the best of its knowledge any conflict of interest with the issuers
of securities that are the subject of such recommendation of the Sub-Adviser or
of its affiliates.
3. BROKER-DEALER SELECTION. The Sub-Adviser 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 and to
negotiate commissions to be paid on such transactions and to supervise the
execution thereof. The Sub-Adviser's primary consideration in effecting 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 Sub-Adviser in the exercise of its fiduciary obligations to the Trust, by
other aspects of the portfolio execution services offered.
Subject to such policies as the Board may determine and consistent with
Section 28(e) of the Securities Exchange Act of 1934, as amended, the
Sub-Adviser may effect a transaction on behalf of the Series with a
broker-dealer who provides brokerage and research services to the Sub-Adviser
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
Sub-Adviser 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 Sub-Adviser's or its affiliate's overall responsibilities
with respect to the Series and to their other clients as to which they exercise
investment discretion.
The Sub-Adviser will consult with the Adviser to the end that portfolio
transactions on behalf of a Series are directed to broker-dealers on the basis
of criteria reasonably considered appropriate by the Adviser. To the extent
consistent with this Agreement, the Sub-Adviser is further authorized to
allocate orders placed by it on behalf of the Series to the Sub-Adviser as agent
if it is registered as a broker-dealer with the SEC, to any of its affiliated
broker-dealers as agents, or to such brokers and dealers who also provide
research or statistical material, or other
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services to the Series, the Sub-Adviser, or an affiliate of the Sub-Adviser.
Such allocation shall be in such amounts and proportions as the Sub-Adviser
shall determine consistent with the above standards, and the Sub-Adviser will
report on said allocation regularly to the Board indicating the broker-dealers
to which such allocations have been made and the basis therefor.
4. DISCLOSURE ABOUT SUB-ADVISER. The Sub-Adviser has reviewed the
post-effective amendment to the Registration Statement for the Trust filed with
the SEC that contains disclosure about the Sub-Adviser, and represents and
warrants that, with respect to the disclosure about or information relating,
directly or indirectly, to the Sub-Adviser, to the Sub-Adviser'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 Sub-Adviser 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 Sub-Adviser is required
to be registered and will maintain such registration so long as this Agreement
remains in effect. The Sub-Adviser will provide the Adviser with a copy of the
Sub-Adviser'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 Sub-Adviser will pay
all expenses incurred by it and its staff and for their activities in connection
with the portfolio management duties specified in this Agreement. In addition,
if the Trust is required, under applicable law, to supplement the Registration
Statement because of a change requested by the Sub-Adviser, the Sub-Adviser will
reimburse the Trust and/or the Adviser for the cost of preparing, printing and
distributing such supplement, unless the Sub-Adviser is requesting the change in
order to comply with an applicable law, rule or regulation. The Adviser 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;
(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;
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(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 Sub-Adviser or an affiliate of the Sub-Adviser;
(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 to trustees who are not officers,
employees, or stockholders of the Sub-Adviser 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 Sub-Adviser is responsible for such expenses under Section 13 of
this Agreement), and the 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 Adviser will
pay the Sub-Adviser 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 Agreement, the Adviser is solely responsible for
the payment of fees to the Sub-Adviser, and the Sub-Adviser agrees to seek
payment of its fees solely from the Adviser.
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7. SEED MONEY. The Adviser agrees that the Sub-Adviser shall not be
responsible for providing money for the initial capitalization of the Series.
8. COMPLIANCE.
(a) The Trust and the Adviser acknowledge that the Sub-Adviser is not
the compliance agent for any Series or for the Trust or the Adviser, and does
not have access to all of each Series' books and records necessary to perform
certain compliance testing. To the extent that the Sub-Adviser 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 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 Sub-Adviser 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 Adviser 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 Adviser, or the Trust's administrator. The Adviser shall
promptly provide the Sub-Adviser 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 applicable to the Portfolio and any
amendments or revisions thereto. The Sub-Adviser agrees that it shall promptly
notify the Adviser and the Trust (1) in the event that the SEC or other
governmental authority has censured the Sub-Adviser; 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 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. The Sub-Adviser further agrees to notify the Adviser and the Trust
promptly of any material fact known to the Sub-Adviser respecting or relating to
the Sub-Adviser 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 Adviser agrees that it shall immediately notify the
Sub-Adviser (1) in the event that the SEC has censured the Adviser or the Trust;
placed limitations upon either of their activities, functions, or operations;
suspended or revoked the Adviser'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.
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9. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Sub-Adviser hereby agrees to keep and maintain all
required records relating to its performance under this Agreement, that all
records which it maintains for the Series are both the property of the Trust and
the Sub-Adviser, and further agrees to promptly make available to the Trust any
of such records upon the Trust's or the Adviser's reasonable request, which the
Trust may copy, at its own expense. The Sub-Adviser 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. 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.
Subject to the foregoing, the Sub-Adviser shall treat as confidential all
information pertaining to the Trust and actions of the Trust, the Adviser and
the Sub-Adviser, and the Adviser shall treat as confidential and use only in
connection with the Series all information furnished to the Trust or the Adviser
by the Sub-Adviser, in connection with its duties under the Agreement except
that the aforesaid information need not be treated as confidential if required
to be disclosed under applicable law, if generally available to the public
through means other than by disclosure by the Sub-Adviser or the Adviser, or if
available from a source other than the Adviser, Sub-Adviser or the Trust.
11. REPRESENTATIONS RESPECTING SUB-ADVISER.
(a) During the term of this Agreement, the Trust and the Adviser agree
to furnish to the Sub-Adviser 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 Sub-Adviser or any of its
affiliates (other than the Adviser), or that use any derivative of the names
"Franklin Advisers, Inc.," or any derivative thereof or logos associated
therewith. The Trust and the Adviser agree that they will not use any such
material without the prior consent of the Sub-Adviser, which consent shall not
be unreasonably withheld. In the event of the termination of this Agreement, the
Trust and the Adviser will furnish to the Sub-Adviser copies of any of the
above-mentioned materials that refer or relate in any way to the Sub-Adviser;
(b) The Trust and the Adviser will furnish to the Sub-Adviser such
information relating to either of them or the business affairs of the Trust as
the Sub-Adviser shall from time to time reasonably request in order to discharge
its obligations hereunder;
(c) The Adviser and the Trust agree that neither the Trust, the
Adviser, nor affiliated persons of the Trust or the Adviser shall give any
information or make any representations or statements in connection with the
sale of shares of the Series concerning the Sub-Adviser or the Series other than
the information or representations contained in the
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Registration Statement, prospectus, or statement of 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 Sub-Adviser, except with the
prior permission of the Sub-Adviser.
12. SERVICES NOT EXCLUSIVE. The services of the Sub-Adviser to the Series
and the Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to render investment advisory or other services to others (including other
investment companies) and to engage in other activities.
13. PROHIBITED CONDUCT. The Sub-Adviser may not consult with any other
sub-adviser 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 sub-advisers
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 Adviser agree that
the Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if
any, who, within the meaning of Section 15 of the Securities Act of 1933, as
amended ("1933 Act"), controls the Sub-Adviser (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
Sub-Adviser of its duties, or by reason of reckless disregard by the Sub-Adviser
of its obligations and duties under this Agreement.
15. INDEMNIFICATION.
(a) Notwithstanding Section 14 of this Agreement, the Adviser agrees
to indemnify and hold harmless the Sub-Adviser, any affiliated person of the
Sub-Adviser (other than the Adviser), and each person, if any, who, within the
meaning of Section 15 of the 1933 Act controls ("controlling person") the
Sub-Adviser (all of such persons being referred to as "Sub-Adviser Indemnified
Persons") against any and all losses, claims, damages, liabilities, or
litigation (including legal and other expenses) to which a Sub-Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, the Code, under any other statute or the regulations thereunder,
at common law or otherwise, arising out of the Adviser's responsibilities to the
Trust which (1) may be based upon any violations of willful misconduct,
malfeasance, bad faith or negligence by the Adviser, any of its employees or
representatives, or any affiliate of or any person acting on behalf of the
Adviser, or (2) may be based upon any untrue statement or alleged untrue
statement of a material fact supplied by, or which is the responsibility of, the
Adviser 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
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omission or alleged omission to state therein a material fact known or which
should have been known to the Adviser 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 Adviser or
the Trust or to any affiliated person of the Adviser by a Sub-Adviser
Indemnified Person; provided however, that in no case shall the indemnity in
favor of the Sub-Adviser 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, or negligence in the performance of
its duties, or by reason of its reckless disregard of obligations and duties
under this Agreement.
(b) Notwithstanding Section 14 of this Agreement, the Sub-Adviser
agrees to indemnify and hold harmless the Adviser, any affiliated person of the
Adviser (other than the Sub-Adviser), and each person, if any, who, is a
controlling person of the Adviser (all of such persons being referred to as
"Adviser Indemnified Persons") against any and all losses, claims, damages,
liabilities, or litigation (including legal and other expenses) to which an
Adviser Indemnified Person may become subject under the 1933 Act, 1940 Act, the
Advisers Act, the Code, under any other statute or the regulations thereunder,
at common law or otherwise, arising out of the Sub-Adviser's responsibilities as
Sub-Adviser of the Series which (1) may be based upon any violations of willful
misconduct, malfeasance, bad faith or negligence by the Sub-Adviser, any of its
employees or representatives, or any affiliate of or any person acting on behalf
of the Sub-Adviser, including but not limited to its responsibilities under
Section 2, Paragraph (a) of 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 an Adviser 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) The Adviser shall not be liable under Paragraph (a) of this
Section 15 with respect to any claim made against a Sub-Adviser Indemnified
Person unless such Sub-Adviser Indemnified Person shall have notified the
Adviser 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 Sub-Adviser Indemnified Person (or after such
Sub-Adviser Indemnified Person shall have received notice of such service on any
designated agent), but failure to notify the Adviser of any such claim shall not
relieve the Adviser from any liability which it may have to the Sub-Adviser
Indemnified Person against whom such action is brought except to the extent the
Adviser is prejudiced by the failure or delay in giving such notice. In case any
such action is brought against the Sub-Adviser Indemnified Person, the Adviser
will be entitled to participate, at its own expense, in the defense thereof or,
after notice to the Sub-Adviser Indemnified Person, to assume the defense
thereof, with counsel satisfactory to the Sub-Adviser Indemnified Person. If the
Adviser assumes the defense of any such action and the selection of counsel by
the Adviser to represent both the Adviser and the Sub-Adviser Indemnified Person
would result in a conflict of interests and therefore, would not, in the
reasonable judgment of the Sub-Adviser Indemnified Person, adequately represent
the interests of the Sub-Adviser Indemnified Person, the Adviser will, at its
own expense, assume the defense with counsel to the Adviser and, also at its own
expense, with separate counsel to the Sub-Adviser Indemnified Person, which
counsel shall be satisfactory to the Adviser and to the Sub-
11
Adviser Indemnified Person. The Sub-Adviser Indemnified Person shall bear the
fees and expenses of any additional counsel retained by it, and the Adviser
shall not be liable to the Sub-Adviser Indemnified Person under this Agreement
for any legal or other expenses subsequently incurred by the Sub-Adviser
Indemnified Person independently in connection with the defense thereof other
than reasonable costs of investigation. The Adviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Sub-Adviser Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Sub-Adviser Indemnified
Person.
(d) The Sub-Adviser shall not be liable under Paragraph (b) of this
Section 15 with respect to any claim made against an Adviser Indemnified Person
unless such Adviser Indemnified Person shall have notified the Sub-Adviser 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 Adviser Indemnified Person (or after such Adviser Indemnified
Person shall have received notice of such service on any designated agent), but
failure to notify the Sub-Adviser of any such claim shall not relieve the
Sub-Adviser from any liability which it may have to the Adviser Indemnified
Person against whom such action is brought except to the extent the Sub-Adviser
is prejudiced by the failure or delay in giving such notice. In case any such
action is brought against the Adviser Indemnified Person, the Sub-Adviser will
be entitled to participate, at its own expense, in the defense thereof or, after
notice to the Adviser Indemnified Person, to assume the defense thereof, with
counsel satisfactory to the Adviser Indemnified Person. If the Sub-Adviser
assumes the defense of any such action and the selection of counsel by the
Sub-Adviser to represent both the Sub-Adviser and the Adviser Indemnified Person
would result in a conflict of interests and therefore, would not, in the
reasonable judgment of the Adviser Indemnified Person, adequately represent the
interests of the Adviser Indemnified Person, the Sub-Adviser will, at its own
expense, assume the defense with counsel to the Sub-Adviser and, also at its own
expense, with separate counsel to the Adviser Indemnified Person, which counsel
shall be satisfactory to the Sub-Adviser and to the Adviser Indemnified Person.
The Adviser Indemnified Person shall bear the fees and expenses of any
additional counsel retained by it, and the Sub-Adviser shall not be liable to
the Adviser Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Adviser Indemnified Person independently
in connection with the defense thereof other than reasonable costs of
investigation. The Sub-Adviser shall not have the right to compromise on or
settle the litigation without the prior written consent of the Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Adviser Indemnified Person.
(e) The Adviser shall not be liable under this Section 15 to indemnify
and hold harmless the Sub-Adviser and the Sub-Adviser shall not be liable under
this Section 15 to indemnify and hold harmless the Adviser with respect to any
losses, claims, damages, liabilities, or litigation that first become known to
the party seeking indemnification during any period that the Sub-Adviser is,
within the meaning of Section 15 of the 1933 Act, a controlling person of the
Adviser.
16. DURATION AND TERMINATION. This Agreement shall become effective with
respect to each Series on the date first indicated above. Unless terminated as
provided herein, the
12
Agreement shall remain in full force and effect until NOVEMBER 30, 2007, 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 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 Sub-Adviser 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 Adviser at any time without penalty, upon sixty
(60) days' written notice to the Sub-Adviser and the Trust, (b) at any time
without payment of any penalty by the Trust, upon the vote of a majority of the
Trust's Board or a majority of the outstanding voting securities of each Series,
upon sixty (60) days' written notice to the Adviser and the Sub-Adviser, or (c)
by the Sub-Adviser at any time without penalty, upon sixty (60) days' written
notice to the Adviser and the Trust, unless the Adviser or the Trust requests
additional time to find a replacement for the Sub-Adviser, in which case the
Sub-Adviser shall allow the additional time requested by the Trust or the
Adviser not to exceed sixty (60) days beyond the initial sixty-day notice
period; provided however, that the Sub-Adviser may terminate this Agreement at
any time without penalty effective upon written notice to the Adviser and the
Trust, in the event either the Sub-Adviser (acting in good faith) or the Adviser
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 Adviser
becomes bankrupt or otherwise incapable of carrying out its obligations under
this Agreement, or in the event that the Sub-Adviser does not receive
compensation for its services from the Adviser 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 Adviser or
the Trust, free from any claim or retention of rights in such records by the
Sub-Adviser, although the Sub-Adviser 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.
13
17. NOTICES. Any notice must be in writing and shall be deemed to have been
given when (1) delivered in person, (2) dispatched by telegram or electric
facsimile transfer (confirmed in writing by postage prepaid first class mail
simultaneously dispatched), (3) sent by internationally recognized overnight
courier service (with receipt confirmed by such overnight courier service), or
(4) 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 Xx.
Xxxxxxxxxx, XX 00000
Attention: Chief Counsel
If to the Adviser:
Directed Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Counsel
If to the Sub-Adviser:
Franklin Advisers, Inc.
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx,
With a copy to the General Counsel at the same address
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.
Notwithstanding the foregoing, this Agreement may be amended without the
approval of a majority of the Series' outstanding voting securities if the
amendment relates solely to a change that is permitted or not prohibited under
federal law, rule, regulation, SEC Order or SEC staff interpretation thereof to
be made without shareholder approval.
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19. USE OF NAMES.
(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 Adviser and/or its affiliates, and that the Sub-Adviser has the right to use
such name (or derivative or logo) only with the approval of the Adviser and only
so long as the Adviser is Adviser to the Trust and/or the Series. Upon
termination of the Management Agreement between the Trust and the Adviser, the
Trust or the Adviser shall notify the Sub-Adviser of the termination of the
Management Agreement and the Sub-Adviser shall as soon as is reasonably possible
cease to use such name (or derivative or logo).
(b) It is understood that the name "Franklin Advisers, Inc." or any
derivative thereof or logos associated with those names are the valuable
property of the Sub-Adviser and its affiliates and that the Trust and/or the
Series have the right to use such names (or derivatives or logos) in offering
materials of the Trust with the approval of the Sub-Adviser and for so long as
the Sub-Adviser is a sub-adviser to the Trust and/or the Series. Upon
termination of this Agreement between the Trust, the Adviser, and the
Sub-Adviser, the Trust shall as soon as is reasonably possible cease to use such
names (or derivatives or logos).
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 state of
Delaware, 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) 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.
(d) Nothing herein shall be construed as constituting the Sub-Adviser
as an agent of the Adviser, or constituting the Adviser as an agent of the
Sub-Adviser.
15
(e) The Adviser and the Sub-Adviser each affirm that it has procedures
in place reasonably designed to protect the privacy of non-public personal
consumer/customer financial information.
(f) The Trust, the Adviser and the Sub-Adviser acknowledge that each
may have obligations under the laws and regulations of the United States to
verify the source of funds and identity of investors in accordance with the USA
Patriot Act, and any rules or regulations adopted thereunder (collectively the
"Patriot Act"). Each party agrees to assist the other parties in monitoring
transactions in accordance with the Patriot Act. If required by applicable law
or regulation, each party shall provide the other parties with documentation
evidencing the identity of a beneficial owner or owners of shares of the Series
upon request when a party is required by a law, court order, of by
administrative or regulatory entity to disclose the identity of the beneficial
owner(s).
(g) This Agreement may be executed in counterparts.
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
------------------
Xxxxxx X. Naka
Executive Vice President
DIRECTED SERVICES, INC.
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
----------
Title: Vice President
--------------
FRANKLIN ADVISERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: President
---------------------------
16
SCHEDULE A
COMPENSATION FOR SERVICES TO SERIES
For the services provided by Franklin Advisers, Inc. ("Sub-Adviser") to the
following Series of ING Investors Trust, pursuant to the attached Portfolio
Management Agreement, the Adviser will pay the Sub-Adviser 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 RATE
------ ----
ING Franklin Income Portfolio(1) 0.625% on first $50 million;
0.465% on next $150 million;
0.375% on next $300 million;
0.350% on next $300 million; and
0.300% thereafter
If this Agreement becomes effective or terminates before the end of any
month, the fee for the period from the effective date to the end of the month or
from the beginning of such month to the date of termination, as the case may be,
shall be prorated according to the proportion that such period bears to the full
month in which such effectiveness or termination occurs.
----------
(1) For purposes of calculating fees under this Agreement, the assets of the
Series shall be aggregated with the assets of the ING Xxxxxxxxx Foreign Equity
Portfolio, a series of ING Partners, Inc. and ING Xxxxxxxxx Global Growth
Portfolio, a series of
ING Investors Trust, which are not parties to this
Agreement. The aggregated assets will be applied to the above schedule and the
resulting fee shall be prorated back to each Series and its respective
Adviser/Manager based on relative net assets.
17
