SUB-ADVISORY AGREEMENT
Exhibit
77(e)(9)
AGREEMENT made this 28th day
of April, 2008, among ING Investors Trust (the “Trust”), a Massachusetts
business trust, Directed Services, LLC (the “Adviser”), a Delaware limited
liability company, and Xxxxxxxx Investment Management North America Inc (the
“Sub-Adviser”), a Corporation organized under the laws of the State of
Delaware (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
Amended and Restated Management Agreement, effective as of January 1,
2007 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; and
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 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 (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 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 will notify the Sub-Adviser promptly if the
Adviser believes that a Series is in violation of any requirement specified in
the first sentence of this paragraph.
(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 allocation, provided further that any requested changes
to such manner of allocation shall be implemented on a prospective basis
only.
2
(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 automatic transmission of the
confirmation of such trades to the Trust’s custodian and portfolio accounting
agent. The parties acknowledge that Sub-Adviser is not the custodian for the
Series’ assets and will not take possession or custody of such
assets.
(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 Adviser acknowledges that,
in
3
accordance
with the foregoing provision, the Sub-Adviser has retained its affiliate,
Xxxxxxxx Investment Management North America Limited to provide investment
management services with respect to the Series. 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 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.
4
(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
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 including whether such
issuers are clients or are being solicited as clients 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.
5
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 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 dated as of February 13, 2008, 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;
6
(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
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,
printing, and mailing 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
7
(q) Organizational
and offering expenses, including expenses of typesetting, printing, and mailing
prospectuses, statements of additional information, and any supplements
thereto.
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.
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 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.
8
(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.
9. Books and
Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Sub-Adviser 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
Adviser’s reasonable request, although the Sub-Adviser may, at its own expense,
make and retain a copy of such records. 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 Xxxxxxxx Investment Management North
America Inc. or Schroders 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;
9
(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 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, provided, however, that
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, other than with its affiliate,
Xxxxxxxx Investment Management North America Limited as set forth in Section 2
of this Agreement, and except that such consultations are permitted between the
current and successor sub-advisers of the Series in order to effect an orderly
transition of sub-advisory duties so long as such consultations are not
concerning transactions prohibited by Section 17(a) of the 1940
Act.
13. 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
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.
14. Indemnification.
(a) Notwithstanding
Section 13 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
10
“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, at common law or otherwise,
arising out of the Adviser’s responsibilities to the Trust which (1) may be
based upon the Adviser’s negligence, willful malfeasance, or bad
faith in the performance of its duties or by reason of the Adviser’s reckless
disregard of its obligations and duties under this Agreement , or by reason of
such acts by any of Adviser’s 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 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 the Sub-Adviser’s reckless disregard of its obligations and duties
under this Agreement.
(b) Notwithstanding
Section 13 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 a Adviser 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 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) Any Sub-Adviser
Indemnified Person shall notify 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
11
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-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) Any Sub-Adviser
Indemnified Person shall notify 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.
12
15. Duration and
Termination. With respect to each Series identified as a
Series on Schedule
A hereto as in effect on the date of this Agreement, unless earlier
terminated with respect to any Series this Agreement shall continue in full
force and effect through November
30, 2009. Thereafter, unless earlier terminated with respect
to a Series, the Agreement shall continue in full force and effect with respect
to each such Series for periods of one year, provided that such continuance is
specifically approved at least annually by (i) the vote of a majority of the
Board of Trustees of the Trust, or (ii) the vote of a majority of the
outstanding voting shares of the Series (as defined in the 1940 Act), and
provided that such continuance is also approved by the vote of a majority of the
Board of Trustees of the Trust who are not parties to this Agreement or
“interested persons” (as defined in the 0000 Xxx) of the Trust or the Adviser,
cast in person at a meeting called for the purpose of voting on such
approval.
With
respect to any Series that was added to Schedule
A hereto as a Series after the date of this Agreement, the Agreement
shall become effective on the later of (i) the date Schedule
A is amended to reflect the addition of such Series as a Series under the
Agreement or (ii) the date upon which the shares of the Series are first sold to
the public, subject to the condition that the Trust’s Board of Trustees,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 0000 Xxx) of the Adviser, and the shareholders of such
Series, shall have approved this Agreement. Unless terminated earlier
as provided herein with respect to any such Series, the Agreement shall continue
in full force and effect for a period of two years from the date of its
effectiveness (as identified above) with respect to that
Series. Thereafter, unless earlier terminated with respect to a
Series, the Agreement shall continue in full force and effect with respect to
each such Series for periods of one year, provided that such continuance is
specifically approved at least annually by (i) the vote of a majority of the
Board of Trustees of the Trust, or (ii) vote of a majority of the outstanding
voting shares of such Series (as defined in the 1940 Act), and provided that
such continuance is also approved by the vote of a majority of the Board of
Trustees of the Trust who are not parties to this Agreement or “interested
persons” (as defined in the 0000 Xxx) of the Trust or the Adviser, 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 three (3) months’ written notice to the Adviser and the
Trust, unless the Adviser or the Trust requests additional time to find
a
13
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 three (3) months beyond
the initial three-month 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, 13, 14, and 18 of this Agreement shall
remain in effect, as well as any applicable provision of this Paragraph numbered
15.
16. 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
Adviser:
Directed
Services LLC
0000
Xxxxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Attention: Chief
Counsel
With a
copy to:
0000 X.
Xxxxxxxxxx Xxxxx Xx.
Xxxxxxxxxx,
XX 00000
Attention:
Chief Counsel
14
If to the
Sub-Adviser:
Xxxxxxxx
Investment Management North America Inc.
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxx
Xxxxxxx
17. 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.
18. Use of
Names.
(a) It is understood
that the name Directed Services LLC 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 names Xxxxxxxx Investment Management North America, 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).
15
19. 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.
20. 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.
(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, or by
administrative or regulatory entity to disclose the identity of the beneficial
owner(s).
(g) This Agreement
may be executed in counterparts.
16
IN WITNESS WHEREOF, the
parties hereto have caused this instrument to be executed as of the day and year
first above written.
|
By: /s/
Xxxxxxxx X. Xxxxxxxx
|
|
Name: Xxxxxxxx
X. Xxxxxxxx
|
|
Title: Senior
Vice President
|
|
DIRECTED
SERVICES, LLC
|
|
By: /s/
Xxxx Xxxxx
|
|
Name: Xxxx
Xxxxx
|
|
Title: Vice
President
|
|
XXXXXXXX
INVESTMENT MANAGEMENT
NORTH
AMERICA INC.
|
|
By: /s/ Xxxxxxxxx
Xxxxx
|
|
Name: Xxxxxxxxx
Xxxxx
|
|
Title: Authorized
Signatory
|
17
SCHEDULE
A
COMPENSATION
FOR SERVICES TO SERIES
For the services provided by Xxxxxxxx
Investment Management North America Inc. (the “Sub-Adviser”) to the following
series of ING Investors Trust, pursuant to the attached Sub-Advisory Agreement
(the “Agreement”),Directed Services, LLC (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
Multi-Manager International Small Cap Portfolio
|
0.65%
on the first $200 million;
0.60%
on the next $200 million; and
0.55%
on assets over $400 million
|
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.
18
