Exhibit 77(e)(13)
PORTFOLIO MANAGEMENT AGREEMENT
THIS AGREEMENT made as of the 14th day of December, 2007, among ING
Investors Trust (formerly The GCG Trust) (the "Trust"), a Massachusetts business
trust, Directed Services, LLC (the "Manager"), a New York corporation, and
Xxxxxxx Capital Management, LLC ("Portfolio Manager"), a limited liability
company 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 two Management Agreements, one effective as of
October 24, 1997 and subsequently amended, and the second effective as of April
29, 2005 (the "Management Agreements"), copies of which have been provided to
the Portfolio Manager, the Trust has retained the Manager to render advisory,
management, and administrative services with respect to the Trust's series; and
WHEREAS, the Trust and the Manager wish to retain the Portfolio Manager to
furnish investment advisory services to one or more of the series of the Trust,
and the Portfolio Manager is willing to furnish such services to the Trust and
the Manager.
NOW THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Trust, the Manager,
and the Portfolio Manager as follows:
1. Appointment. The Trust and the Manager hereby appoint the Portfolio
Manager to act as an investment 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 Portfolio Manager accepts such
appointment and agrees to furnish the services herein set forth for the
compensation herein provided.
In the event the Trust designates one or more series other than the Series
with respect to which the Trust and the Manager wish to retain the Portfolio
Manager to render investment advisory services hereunder (each, an "Additional
Series"), the Manager shall promptly notify the Portfolio Manager in writing of
its desire to retain the Portfolio Manager to provide investment advisory
services to such Additional Series. If the Portfolio Manager is willing to
render such advisory services to the proposed Additional Series, the Portfolio
Manager shall so notify the Trust and Manager in writing. Upon receipt of the
written confirmation of acceptance of the Portfolio Manager with respect to each
Additional Series, Schedule A to this Agreement shall be amended to reflect the
addition of each such Additional Series and the services provided to each such
Additional Series shall be governed by the terms of this Agreement.
2. Portfolio Management Duties and Authority. Subject to the supervision
of the Trust's Board of Trustees and the Manager, the Portfolio Manager will
provide a continuous investment program for each Series' portfolio and determine
the composition of the assets of each Series' portfolio, including determination
of the purchase, retention, or sale of the securities, cash (except as described
below), and other investments contained in the portfolio. The Portfolio Manager
will provide investment research and conduct a continuous program of evaluation,
investment, sales, and reinvestment of each Series' assets by determining the
securities and other investments that shall be purchased, entered into, sold,
closed, or exchanged for the Series, when these transactions should be executed,
and what portion of the assets of each Series should be held in the various
securities and other investments in which it may invest, and the Portfolio
Manager is hereby authorized to execute and perform such services and
transactions on behalf of each Series. In accordance with the forgoing duties,
the Portfolio Manager is hereby authorized to act as agent for the portfolio to
order deposits and the investment of cash (except as described below) and
purchases and sales of securities for the Series' account and in the name of the
Trust, with the understanding that the Portfolio Manager will not act as
custodian of any assets of any Series, and that the custodian of each Series
will invest all surplus cash of the Series each day in money market funds or
overnight repurchase accounts to be monitored by the custodian and the Trust.
This authorization shall be a continuing one and shall remain in full force and
effect until this Agreement is terminated in accordance with the provisions of
Section 16 hereof. To the extent permitted by the investment policies of each
Series, the Portfolio Manager shall make decisions for the Series as to foreign
currency matters and make determinations as to and execute and perform foreign
currency exchange contracts on behalf of the Series and shall have the authority
to act in such capacity as the Portfolio Manager deems necessary or desirable in
order to carry out its duties hereunder for the protection of the Series so long
as not expressly prohibited by the terms of this Agreement, the 1940 Act or
other securities laws or regulations. The Portfolio Manager will provide the
services under this Agreement in accordance with each Series' investment
objective or objectives, policies, and restrictions as stated in the Trust's
Registration Statement filed with the Securities and Exchange Commission (the
"SEC"), as from time to time amended (the "Registration Statement"), copies of
which shall be sent to the Portfolio Manager by the Manager prior to the
commencement of this Agreement and promptly upon filing any such amendment with
the SEC. The Portfolio Manager further agrees as follows:
(a) The Portfolio Manager will (i) manage each Series so that no
action or omission on the part of the Portfolio Manager will cause a
Series to fail to meet the 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, both of which shall not be
the responsibility of the Portfolio Manager), (ii) manage each Series so
that no action or omission on the part of the Portfolio Manager shall
cause a Series to fail to comply with the diversification requirements of
Section 817(h) of the Code, and the regulations issued thereunder, and
(iii) use reasonable efforts to manage the Series so that no action or
omission on the part of the Portfolio Manager shall cause a Series to fail
to comply with any other rules and regulations pertaining to investment
vehicles underlying variable annuity or variable life insurance policies.
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The Manager will notify the Portfolio Manager promptly if the Manager
believes that a Series is in violation of any requirement specified in the
first sentence of this paragraph. The Manager or the Trust will notify the
Portfolio Manager of any pertinent changes, modifications to, or
interpretations of Section 817(h) of the Code and regulations issued
thereunder and of rules or regulations pertaining to investment vehicles
underlying variable annuity or variable life insurance policies.
(b) On occasions when the Portfolio Manager deems the purchase or
sale of a security to be in the best interest of a Series as well as of
other investment advisory clients of the Portfolio Manager or any of its
affiliates, the Portfolio Manager may, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate
the securities to be so sold or purchased with those of its other clients
where such aggregation is not inconsistent with the policies set forth in
the Registration Statement. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction,
will be made by the Portfolio Manager in a manner that is fair and
equitable in the judgment of the Portfolio Manager in the exercise of its
fiduciary obligations to the Trust and to such other clients, provided,
however that the Manager and the Board shall have the right to review and
request changes to the Portfolio Manager's manner of allocation, provided
further that any requested changes to such manner of allocation that are
agreed to by the Portfolio Manager shall be implemented on a prospective
basis only.
(c) In connection with the purchase and sale of securities for each
Series, the Portfolio Manager will arrange for the transmission to the
custodian and portfolio accounting agent for the Series on a daily basis,
such confirmation, trade tickets, and other documents and information,
including, but not limited to, Cusip, Sedol, or other numbers that
identify securities to be purchased or sold on behalf of the Series, as
may be reasonably necessary to enable the custodian and portfolio
accounting agent to perform their administrative and recordkeeping
responsibilities with respect to the Series. With respect to portfolio
securities to be purchased or sold through the Depository Trust Company,
the Portfolio Manager will arrange for the automatic transmission of the
confirmation of such trades to the Trust's custodian and portfolio
accounting agent.
(d) The Portfolio Manager will assist the portfolio accounting agent
for the Trust in determining 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 reasonably seeks assistance from or identifies for review
by the Portfolio Manager, and the parties agree that the Portfolio Manager
shall not bear responsibility or liability for the determination or
accuracy of the valuation of any portfolio securities and other assets of
the Series.
(e) The Portfolio Manager will make available to the Trust and the
Manager, promptly upon reasonable request, all of the Series' investment
records and ledgers maintained by the Portfolio Manager (which shall not
include the records and ledgers maintained by the custodian and portfolio
accounting agent for the Trust) as are necessary to assist the Trust and
the Manager to comply with requirements of the 1940 Act and the Investment
Advisers Act of 1940 (the "Advisers Act"), as well as other applicable
laws. The Portfolio Manager will furnish to regulatory authorities having
the requisite authority any information or reports in connection with such
services which may be requested in order to ascertain whether the
operations of the Trust are being conducted in a manner consistent with
applicable laws and regulations.
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(f) The Portfolio Manager will provide reports to the Trust's Board
of Trustees for consideration at meetings of the Board on the investment
program for the Series and the issuers and securities represented in the
Series' portfolio, and will furnish the Trust's Board of Trustees with
respect to the Series such periodic and special reports as the Trustees
and the Manager may reasonably request.
(g) In rendering the services required under this Agreement, the
Portfolio Manager may, from time to time, employ or associate with itself
such person or persons as it believes necessary to assist it in carrying
out its obligations under this Agreement. The Portfolio Manager may not
retain, employ or associate itself with any company that would be an
"investment adviser," as that term is defined in the 1940 Act, to the
Series unless the contract with such company is approved by a majority of
the Trust's Board of Trustees and a majority of Trustees who are not
parties to any agreement or contract with such company and who are not
"interested persons," as defined in the 1940 Act, of the Trust, the
Manager, or the Portfolio Manager, or any such company, and is approved by
the vote of a majority of the outstanding voting securities of the
applicable Series of the Trust to the extent required by the 1940 Act. The
Portfolio Manager shall be responsible for making reasonable inquiries and
for reasonably ensuring that any associated person of the Portfolio
Manager, or of any company that the Portfolio Manager has retained,
employed, or with which it has associated with respect to the Series, to
the best of the Portfolio Manager's knowledge, in any material connection
with the handling of assets, has not:
(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 or for hedging purposes, the parties represent the
following:
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(i) That the Manager is properly and lawfully established with
full power and authority to enter into spot and forward foreign
exchange contracts, to perform its obligations under such foreign
exchange contracts and to procure the Portfolio Manager to enter
into such foreign exchange contracts on its behalf.
(ii) That the Manager may not, except for purposes of
redemptions, expenses, and other costs of doing business, encumber
funds which the Portfolio Manager has under the Portfolio Manager's
management or which benefit from the Portfolio Manager's investment
advice. If the Manager requires funds for any redemptions, expenses,
and other costs of doing business, the Portfolio Manager will make
funds available in a reasonably timely manner for the Manager to
meet such obligations. The Manager reserves the right to segregate
assets upon notice to the Portfolio Manager and provide different
arrangements for investment management with respect to those assets.
(iii) That the Portfolio Manager has been granted full power
and authority to enter into foreign exchange contracts as agent on
the Manager's behalf and to give instructions for settlement for the
same.
(iv) That the Portfolio Manager has full authority to instruct
Manager's and Trust's custodian in conformity with its mandate.
(v) That in the event of the termination of this Agreement,
the Portfolio Manager may offer its counterparty the ability to
leave open any existing foreign exchange contracts or to close them
out at prevailing market rates.
(i) Manager reserves for itself the responsibility to vote all
proxies for equity securities held by the Series, and Portfolio Manager
shall not be responsible for voting any such proxies unless otherwise
directed by Manager in written instructions provided to Portfolio Manager
with reasonable advance notice. Portfolio Manager shall not have any
responsibility for giving notice of, filing, collecting, or otherwise
taking any action on any claims that the Series or Trust may be entitled
to assert in securities class-action lawsuits or other legal actions
relating to any securities held in the Series. Until this Agreement is
terminated, upon Manager's request, Portfolio Manager will use its best
efforts to forward to Manager or the custodian for the Series material
information that Portfolio Manager receives regarding legal actions
concerning securities held in the Series.
3. Broker-Dealer Selection. The Portfolio Manager is hereby authorized to
place orders for the purchase and sale of securities and other investments for
each Series' portfolio, with or through such persons, brokers, or dealers as the
Portfolio Manager may select, and to negotiate commissions to be paid on such
transactions and to supervise the execution thereof. The Portfolio Manager's
primary consideration in effecting any such transaction will be to seek best
execution of orders for the Series, taking into account the factors specified in
the Registration Statement, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation, the
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firms involved, and the firm's risk in positioning
a block of securities. Accordingly, the price to a Series in any transaction may
be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Portfolio Manager in
the exercise of its fiduciary obligations to the Trust, by other aspects of the
portfolio execution services offered.
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Subject to such policies as the Board of Trustees may determine and
consistent with Section 28(e) of the Securities Exchange Act of 1934, the
Portfolio Manager may effect a transaction on behalf of the Series with a
broker-dealer who provides brokerage research services to the Portfolio Manager
notwithstanding the fact that the commissions payable with respect to any such
transaction may be greater than the amount of any commission another
broker-dealer might have charged for effecting that transaction, if the
Portfolio Manager determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker-dealer, viewed in terms of either that particular
transaction or the Portfolio Manager's or its affiliate's overall
responsibilities with respect to the Series and to their other clients as to
which they exercise investment discretion.
The Portfolio Manager will consult with the Manager 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 Manager. Manager
may instruct the Portfolio Manager to use its best efforts to execute a portion
of securities transactions on behalf of a Series, not to exceed 25% of the
securities transactions for such Series on an annual basis, with or through one
or more brokers designated by Manager. Manager represents and warrants that it
has negotiated and is satisfied with its selection of such brokers, their
commission rates, execution quality, and all other terms and conditions relating
to the services to be provided by such brokers in connection with all such
transactions. To the extent consistent with this Agreement and any applicable
laws, the Portfolio Manager is further authorized to allocate orders placed by
it on behalf of the Series to any of the Portfolio Manager's 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 Portfolio
Manager or its other clients, provided that the Manager and the Portfolio
Manager will not knowingly allocate orders to any broker or dealer to compensate
the broker or dealer for its services in distributing shares of the Series or
other mutual funds. An affiliated broker may execute transactions for a Series
on an exchange floor, and receive and retain all commissions, fees, and benefits
without complying further with Section 11(a) of the Securities Exchange Act. An
affiliated broker also may execute agency cross trades, in which the affiliated
broker acts as broker both for a Series and for the counterparty to the
transaction. Agency cross trades may enable the Portfolio Manager to purchase or
sell a block of securities for its clients at a set price, and possibly avoid an
unfavorable price movement that may be created through entrance into the market
with such purchase or sale order. Portfolio Manager will comply with any legal
requirements that may apply, including, but not limited to, Rule 17e-1 under the
1940 Act and Rule 206(3)-2 under the Advisers Act, as well any procedures
adopted by the Board of Trustees of the Trust. Manager is aware that the
affiliation between the Portfolio Manager and an affiliated broker could give
the Portfolio Manager an indirect interest in brokerage commissions received by
the affiliated broker, and that agency cross trades could create potentially
conflicting divisions of loyalties and responsibilities, because the affiliated
broker acts for and receives commissions from both sides of the trade. Such
allocation shall be in such amounts and proportions as the Portfolio Manager
shall determine consistent with the above standards, and the Portfolio Manager
will report on said allocation regularly to the Board indicating the
broker-dealers to which such allocations have been made and the basis therefor.
Manager may at any time revoke its consent to the execution of future trades
with an affiliated broker for a Series by giving written notice to Portfolio
Manager or the affiliated broker.
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4. Disclosure about Portfolio Manager. The Portfolio Manager has reviewed
as of the effective date of this Agreement the post-effective amendment to the
Registration Statement for the Trust filed with the SEC that contains disclosure
about the Portfolio Manager, and represents and warrants that, with respect to
the disclosure about or information relating, directly or indirectly, to the
Portfolio Manager, to the Portfolio Manager's knowledge, such Registration
Statement contains, as of the effective date hereof, no untrue statement of any
material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein not misleading. The Portfolio Manager further represents and warrants
that it is a duly registered investment adviser under the Advisers Act, or
alternatively that it is not required to be a registered investment adviser
under the Advisers Act to perform the duties described in this Agreement, and
that it is a duly registered investment adviser in all states in which the
Portfolio Manager is required to be registered and will maintain such
registration so long as this Agreement remains in effect. The Portfolio Manager
will provide the Manager with a copy of the Portfolio Manager's Form ADV, Part
II at least once each year during the term of this Agreement and at such other
times as reasonably may be requested in writing by the Manager, 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. Manager represents that it
has received Portfolio Manager's current Form ADV Part II at least 48 hours
prior to entering into this Agreement.
5. Expenses. During the term of this Agreement, the Portfolio Manager will
pay all expenses incurred by it and its staff and for their activities in
connection with its portfolio management duties under this Agreement. The
Manager or the Trust shall be responsible for all the expenses of the Trust's
operations including, but not limited to:
(a) Expenses of all audits by the Trust's independent public
accountants;
(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;
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(f) Expenses of maintaining the Trust's tax records;
(g) Salaries and other compensation of any of the Trust's executive
officers and employees, if any, who are not officers, directors,
stockholders, or employees of the Portfolio Manager or an affiliate of the
Portfolio Manager;
(h) Taxes levied against the Trust;
(i) Brokerage fees and commissions, transfer fees, registration
fees, taxes and similar liabilities and costs properly payable or incurred
in connection with the purchase and sale of portfolio securities for the
Series;
(j) Costs, including the interest expense, of borrowing money;
(k) Costs and/or fees incident to meetings of the Trust's
shareholders, the preparation and mailings of prospectuses and reports of
the Trust to its shareholders, the filing of reports with regulatory
bodies, the maintenance of the Trust's existence, and the regulation of
shares with federal and state securities or insurance authorities;
(l) The Trust's legal fees, including the legal fees related to the
registration and continued qualification of the Trust's shares for sale;
(m) Trustees' fees and expenses to trustees who are not officers,
employees, or stockholders of the Portfolio Manager or any affiliate
thereof;
(n) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(o) Association membership dues;
(p) Extraordinary expenses of the Trust as may arise including
expenses incurred in connection with litigation, proceedings, and other
claims (unless the Portfolio Manager is responsible for such expenses
under Section 14 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 Manager
will pay the Portfolio Manager a fee, payable as described in Schedule A.
The fee will be prorated to reflect any portion of a calendar month that
this Agreement is not in effect among the parties. In accordance with the
provisions of the Management Agreements, the Manager is solely responsible for
the payment of fees to the Portfolio Manager, and the Portfolio Manager agrees
to seek payment of its fees solely from the Manager.
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7. Seed Money. The Manager agrees that the Portfolio Manager shall not be
responsible for providing money for the initial capitalization of the Series.
8. Compliance.
(a) The Trust and the Manager acknowledge that the Portfolio Manager
is not the compliance agent for any Series or for the Trust or the
Manager, and does not have access to all of each Series' books and records
necessary to perform certain compliance testing. To the extent that the
Portfolio Manager has agreed to perform the services specified in Section
2 in accordance with the Trust's registration statement, the Trust's
Amended and Restated Agreement and Declaration of Trust and By-Laws, the
Trust's Prospectus and any policies adopted by the Trust's Board of
Trustees applicable to the Series (collectively, the "Charter
Requirements"), and in accordance with applicable law (including
Subchapters M and L of the Code, the 1940 Act and the Advisers Act
("Applicable Law")), the Portfolio Manager shall perform such services
based upon its books and records with respect to each Series, which
comprise a portion of each Series' books and records, and upon information
and written instructions received from the Trust, the Manager or the
Trust's administrator, and shall not be held responsible under this
Agreement so long as it performs such services in accordance with this
Agreement, the Charter Requirements and Applicable Law based upon such
books and records and such information and instructions provided by the
Trust, the Manager, or the Trust's administrator. The Manager shall
promptly provide the Portfolio Manager with copies of the Trust's
registration statement, the Trust's Amended and Restated Agreement and
Declaration of Trust and By-Laws, the Trust's currently effective
Prospectus and any written policies and procedures adopted by the Trust's
Board of Trustees applicable to the Portfolio and any amendments or
revisions thereto.
(b) The Portfolio Manager agrees that it shall promptly notify the
Manager and the Trust (i) in the event that the SEC or other governmental
authority has censured the Portfolio Manager; placed limitations upon its
activities, functions or operations; suspended or revoked its
registration, if any, as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions,
(ii) 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 (iii) 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 Portfolio Manager further agrees to notify the
Manager and the Trust promptly of any material fact known to the Portfolio
Manager respecting or relating to the Portfolio Manager that is not
contained in the Registration Statement as then in effect, and is required
to be stated therein or necessary to make the statements therein not
misleading, or of any statement contained therein that becomes untrue in
any material respect.
(c) The Manager agrees that it shall immediately notify the
Portfolio Manager (i) in the event that the SEC has censured the Manager
or the Trust; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Manager's registration
as an investment adviser; or has commenced proceedings or an investigation
that may result in any of these actions, (ii) 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 (iii) 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 Portfolio Manager hereby agrees that all records which
it maintains for the Series are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's or the
Manager's reasonable request, although the Portfolio Manager may, at its own
expense, make and retain a copy of such records. The Portfolio Manager further
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
the records required to be maintained by Rule 31a-l under the 1940 Act and to
preserve the records required by Rule 204-2 under the Advisers Act for the
period specified in such rules.
10. Cooperation; Confidentiality. 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 Portfolio Manager shall treat as
confidential all information pertaining to the Trust and actions of the Trust,
the Manager and the Portfolio Manager; and the Manager shall treat as
confidential and use only in connection with the Series all information
furnished to the Trust or the Manager by the Portfolio Manager, in connection
with its duties under the Agreement; except that the aforesaid information need
not be treated as confidential if the information is required to be disclosed
under applicable law, is generally available to the public through means other
than by disclosure by the Portfolio Manager or the Manager, or is available from
a source other than the Manager, Portfolio Manager or the Trust. Notwithstanding
the foregoing, the Portfolio Manager may disclose information about the Series
to its affiliates for operational, compliance, or risk management purposes, or
to other persons such as the custodian of the Series, brokers, and other service
providers to the Series or to the Portfolio Manager to the extent reasonably
necessary for the Portfolio Manager to perform its duties under this Agreement.
11. Representations Respecting Portfolio Manager.
(a) During the term of this Agreement, the Trust and the Manager
agree to furnish to the Portfolio Manager at its principal offices prior
to use thereof copies of all Registration Statements and amendments
thereto, prospectuses, proxy statements, reports to shareholders, sales
literature or other material prepared for distribution to shareholders of
the Trust or any Series or to the public that refer or relate in any way
to the Portfolio Manager or any of its affiliates (other than the
Manager), or that use any derivative of the names "Marsico" or "Xxxxxxx
Capital Management, LLC," or any logos associated therewith. The Trust and
the Manager agree that they will not use any such material without the
prior consent of the Portfolio Manager, which consent shall not be
unreasonably withheld. In the event of the termination of this Agreement,
the Trust and the Manager will furnish to the Portfolio Manager copies of
any of the above-mentioned materials that refer or relate in any way to
the Portfolio Manager;
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(b) The Trust and the Manager will furnish to the Portfolio Manager
such information relating to either of them or the business affairs of the
Trust as the Portfolio Manager shall from time to time reasonably request
in order to discharge its obligations hereunder;
(c) The Manager and the Trust agree that neither the Trust, the
Manager, nor affiliated persons of the Trust or the Manager shall give any
information or make any representations or statements in connection with
the sale of shares of the Series concerning the Portfolio Manager or the
Series other than the information or representations contained in the
Registration Statement, prospectus, or statement of additional information
for the Trust, as they may be amended or supplemented from time to time,
or in reports or proxy statements for the Trust, or in sales literature or
other promotional material approved in advance by the Portfolio Manager,
except with the prior permission of the Portfolio Manager.
12. Services Not Exclusive. The services of the Portfolio Manager to the
Series and the Trust are not to be deemed to be exclusive, and the Portfolio
Manager 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 Portfolio Manager may not knowingly consult
with any other portfolio manager of the Trust concerning transactions in
securities or other assets for any investment portfolio of the Trust, including
the Series, except that such consultations are permitted between the current and
successor portfolio managers of the Series in order to effect an orderly
transition of portfolio management duties so long as such consultations are not
concerning transactions prohibited by Section 17(a) of the 1940 Act.
14. Liability. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Trust and the Manager agree that
the Portfolio Manager, any affiliated person of the Portfolio Manager, and each
person, if any, who, within the meaning of Section 15 of the 1933 Act, controls
the Portfolio Manager (a) 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 (b) shall not be liable for any error of
judgment, mistake of law, any diminution in value of the investment portfolio of
the Series, or subject to any damages, expenses, or losses in connection with,
any act or omission connected with or arising out of any services rendered under
this Agreement, except by reason of willful misfeasance, bad faith, or gross
negligence in the performance by the Portfolio Manager of its duties, or by
reason of reckless disregard by the Portfolio Manager of its obligations and
duties under this Agreement. Portfolio Manager makes no representation or
warranty, express or implied, that any level of performance or investment
results will be achieved by any Series, or that the Series will perform
comparably with any standard or index, including other clients of Portfolio
Manager.
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15. Indemnification.
(a) Notwithstanding Section 14 of this Agreement, the Manager agrees
to indemnify and hold harmless the Portfolio Manager, any affiliated
person of the Portfolio Manager (other than the Manager), and each person,
if any, who, within the meaning of Section 15 of the 1933 Act controls
("controlling person") the Portfolio Manager (all of such persons being
referred to as "Portfolio Manager Indemnified Persons") against any and
all losses, claims, damages, liabilities, or litigation (including legal
and other expenses) to which a Portfolio Manager Indemnified Person may
become subject under the 1933 Act, the 1940 Act, the Advisers Act, the
Code, under any other statute, at common law or otherwise, arising out of
the Manager's responsibilities to the Trust which (i) may be based upon
any violations of willful misconduct, malfeasance, bad faith or negligence
by the Manager, any of its employees or representatives, or any affiliate
of or any person acting on behalf of the Manager, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
supplied by, or which is the responsibility of, the Manager and contained
in the Registration Statement or prospectus covering shares of the Trust
or any Series, or any amendment thereof or any supplement thereto, or the
omission or alleged omission to state therein a material fact known or
which should have been known to the Manager and was required to be stated
therein or necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon information furnished
to the Manager or the Trust or to any affiliated person of the Manager by
a Portfolio Manager Indemnified Person; provided however, that in no case
shall the indemnity in favor of the Portfolio Manager Indemnified Person
be deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad
faith, 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 Portfolio
Manager agrees to indemnify and hold harmless the Manager, any affiliated
person of the Manager (other than the Portfolio Manager), and each person,
if any, who, is a controlling person of the Manager (all of such persons
being referred to as "Manager Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal and
other expenses) to which a Manager Indemnified Person may become subject
under the 1933 Act, 1940 Act, the Advisers Act, the Code, under any other
statute, at common law or otherwise, arising out of the Portfolio
Manager's responsibilities as Portfolio Manager of the Series which (i)
may be based upon any violations of willful misconduct, malfeasance, bad
faith or negligence by the Portfolio Manager, any of its employees or
representatives, or any affiliate of or any person acting on behalf of the
Portfolio Manager, including but not limited to its responsibilities under
Section 2, Paragraph (a) of this Agreement, or (ii) any material breach of
any representations or warranties contained in Section 4; provided,
however, that in no case shall the indemnity in favor of a Manager
Indemnified Person be deemed to protect such person against any liability
to which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties under this
Agreement.
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(c) The Manager shall not be liable under Paragraph (a) of this
Section 15 with respect to any claim made against a Portfolio Manager
Indemnified Person unless such Portfolio Manager Indemnified Person shall
have notified the Manager in writing within a reasonable time after the
summons, notice, or other first legal process or notice giving information
of the nature of the claim shall have been served upon such Portfolio
Manager Indemnified Person (or after such Portfolio Manager Indemnified
Person shall have received notice of such service on any designated
agent), but failure to notify the Manager of any such claim shall not
relieve the Manager from any liability which it may have to the Portfolio
Manager Indemnified Person against whom such action is brought except to
the extent the Manager is prejudiced by the failure or delay in giving
such notice. In case any such action is brought against the Portfolio
Manager Indemnified Person, the Manager will be entitled to participate,
at its own expense, in the defense thereof or, after notice to the
Portfolio Manager Indemnified Person, to assume the defense thereof, with
counsel satisfactory to the Portfolio Manager Indemnified Person. If the
Manager assumes the defense of any such action and the selection of
counsel by the Manager to represent both the Manager and the Portfolio
Manager Indemnified Person would result in a conflict of interests and
therefore, would not, in the reasonable judgment of the Portfolio Manager
Indemnified Person, adequately represent the interests of the Portfolio
Manager Indemnified Person, the Manager will, at its own expense, assume
the defense with counsel to the Manager and, also at its own expense, with
separate counsel to the Portfolio Manager Indemnified Person, which
counsel shall be satisfactory to the Manager and to the Portfolio Manager
Indemnified Person. The Portfolio Manager Indemnified Person shall bear
the fees and expenses of any additional counsel retained by it, and the
Manager shall not be liable to the Portfolio Manager Indemnified Person
under this Agreement for any legal or other expenses subsequently incurred
by the Portfolio Manager Indemnified Person independently in connection
with the defense thereof other than reasonable costs of investigation. The
Manager shall not have the right to compromise on or settle the litigation
without the prior written consent of the Portfolio Manager Indemnified
Person if the compromise or settlement results, or may result, in a
finding of wrongdoing on the part of the Portfolio Manager Indemnified
Person.
(d) The Portfolio Manager shall not be liable under Paragraph (b) of
this Section 15 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have
notified the Portfolio Manager in writing within a reasonable time after
the summons, notice, or other first legal process or notice giving
information of the nature of the claim shall have been served upon such
Manager Indemnified Person (or after such Manager Indemnified Person shall
have received notice of such service on any designated agent), but failure
to notify the Portfolio Manager of any such claim shall not relieve the
Portfolio Manager from any liability which it may have to the Manager
Indemnified Person against whom such action is brought except to the
extent the Portfolio Manager is prejudiced by the failure or delay in
giving such notice. In case any such action is brought against the Manager
Indemnified Person, the Portfolio Manager will be entitled to participate,
at its own expense, in the defense thereof or, after notice to the Manager
Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person.
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If the Portfolio Manager assumes the defense of any such action and the
selection of counsel by the Portfolio Manager to represent both the
Portfolio Manager and the Manager Indemnified Person would result in a
conflict of interests and therefore, would not, in the reasonable judgment
of the Manager Indemnified Person, adequately represent the interests of
the Manager Indemnified Person, the Portfolio Manager will, at its own
expense, assume the defense with counsel to the Portfolio Manager and,
also at its own expense, with separate counsel to the Manager Indemnified
Person, which counsel shall be satisfactory to the Portfolio Manager and
to the Manager Indemnified Person. The Manager Indemnified Person shall
bear the fees and expenses of any additional counsel retained by it, and
the Portfolio Manager shall not be liable to the Manager Indemnified
Person under this Agreement for any legal or other expenses subsequently
incurred by the Manager Indemnified Person independently in connection
with the defense thereof other than reasonable costs of investigation. The
Portfolio Manager shall not have the right to compromise on or settle the
litigation without the prior written consent of the Manager Indemnified
Person if the compromise or settlement results, or may result in a finding
of wrongdoing on the part of the Manager Indemnified Person.
16. 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, 2008. 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 securities (as defined in the 0000 Xxx) of
the Series, 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 Manager, cast in person at a meeting called for the purpose of voting on
such approval.
With respect to any Series that may be added to Schedule A hereto as a Series
after the effective 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 Trust or
the Manager, 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
securities (as defined in the 0000 Xxx) of such Series, 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 Manager, cast in person at a
meeting called for the purpose of voting on such approval.
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The Portfolio Manager shall not provide any services for such Series or receive
any fees on account of such Series with respect to which this Agreement is not
approved as described in the preceding sentence. However, any approval of this
Agreement by the holders of a majority of the outstanding shares (as defined in
the 0000 Xxx) of a Series shall be effective to continue this Agreement with
respect to such Series notwithstanding (i) that this Agreement has not been
approved by the holders of a majority of the outstanding shares of any other
Series or (ii) that this agreement has not been approved by the vote of a
majority of the outstanding shares of the Trust, unless such approval shall be
required by any other applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated for each or any
Series hereunder: (a) by the Manager at any time without penalty, upon sixty
(60) days' written notice to the Portfolio Manager and the Trust, (b) at any
time without payment of any penalty by the Trust, upon the vote of a majority of
the Trust's Board of Trustees or a majority of the outstanding voting securities
of each Series, upon sixty (60) days' written notice to the Manager and the
Portfolio Manager, or (c) by the Portfolio Manager at any time without penalty,
upon three (3) months' written notice to the Manager and the Trust, unless the
Manager or the Trust requests additional time to find a replacement for the
Portfolio Manager, in which case the Portfolio Manager shall allow the
additional time requested by the Trust or the Manager not to exceed three (3)
months beyond the initial three-month notice period; provided however, that the
Portfolio Manager may terminate this Agreement at any time without penalty
effective upon written notice to the Manager and the Trust, in the event either
the Portfolio Manager (acting in good faith) or the Manager ceases to be
registered as an investment adviser under the Advisers Act or otherwise becomes
legally incapable of providing investment management services pursuant to its
respective contract with the Trust, or in the event the Manager becomes bankrupt
or otherwise incapable of carrying out its obligations under this Agreement, or
in the event that the Portfolio Manager does not receive compensation for its
services from the Manager or the Trust as required by the terms of this
Agreement. In addition, this Agreement shall terminate with respect to a Series
in the event that it is not approved by the vote of a majority of the
outstanding voting securities of that Series at a meeting of shareholders at
which approval of the Agreement shall be considered by shareholders of the
Series.
In the event of termination for any reason, all records of each Series for which
the Agreement is terminated shall promptly be returned to the Manager or the
Trust, free from any claim or retention of rights in such records by the
Portfolio Manager, although the Portfolio Manager may, at its own expense, make
and retain a copy of such records. The Agreement shall automatically terminate
in the event of its assignment (as such term is described in the 1940 Act). In
the event this Agreement is terminated or is not approved in the manner
described above, the Sections or Paragraphs numbered 2(f), 9, 10, 11, 14, 15,
and 19 of this Agreement shall remain in effect, as well as any applicable
provision of this Paragraph numbered 16.
17. Notices. Any notice must be in writing and shall be sufficiently given
(1) when delivered in person, (2) when dispatched by telegram or e-mail or
electric facsimile transfer (confirmed in writing by postage prepaid first class
mail simultaneously dispatched), (3) when sent by internationally recognized
overnight courier service (with receipt confirmed by such overnight courier
service), or (4) when sent by registered or certified mail, to the other party
at the address of such party set forth below or at such other address as such
party may from time to time specify in writing to the other party.
15
If to the Trust:
ING Investors Trust
0000 X. Xxxxxxxxxx Xxxxx Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Counsel
If to the Manager:
Directed Services, LLC
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Counsel
If to the Portfolio Manager:
Xxxxxxx Capital Management, LLC
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X.X. Xxxxxx
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 material amendment of this Agreement shall be
effective until approved by an affirmative vote of (a) 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 (b) the holders of a majority of the outstanding voting
securities of the Series.
19. Use of Name.
(a) It is understood that the name "Directed Services, LLC" or any
derivative thereof or logo associated with that name is the valuable
property of the Manager and/or its affiliates, and that the Portfolio
Manager has the right to use such name (or derivative or logo) only with
the approval of the Manager and only so long as the Manager is Manager to
the Trust and/or the Series. Upon termination of either of the two
Management Agreements between the Trust and the Manager, the Portfolio
Manager shall as soon as is reasonably possible cease to use such
applicable name (or derivative or logo).
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(b) It is understood that the names "Marsico" or "Xxxxxxx Capital
Management, LLC," or any derivative thereof or logos associated with those
names are the valuable property of the Portfolio Manager and its
affiliates and that the Trust and/or the Series have the right to use such
names (or derivatives or logos) in offering materials of the Trust with
the approval of the Portfolio Manager and for so long as the Portfolio
Manager is a portfolio manager to the Trust and/or the Series. Upon
termination of this Agreement between the Trust, the Manager, and the
Portfolio Manager, the Trust shall as soon as is reasonably possible cease
to use such names (or derivatives or logos).
20. Amended and Restated Agreement and Declaration of Trust. A copy of the
Amended and Restated Agreement and Declaration of Trust for the Trust is on file
with the Secretary of the Commonwealth of Massachusetts. The Amended and
Restated Agreement and Declaration of Trust has been executed on behalf of the
Trust by Trustees of the Trust in their capacity as Trustees of the Trust and
not individually. The obligations of this Agreement shall be binding upon the
assets and property of the Trust and shall not be binding upon any Trustee,
officer, or shareholder of the Trust individually.
21. Miscellaneous.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Pennsylvania, without giving effect to the provisions, policies or
principles thereof relating to choice or conflict of laws, provided that
nothing herein shall be construed in a manner inconsistent with the 1940
Act, the Advisers Act or rules or orders of the SEC thereunder. The term
"affiliate" or "affiliated person" as used in this Agreement shall mean
"affiliated person" as defined in Section 2(a)(3) of the 0000 Xxx.
(b) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(c) To the extent permitted under Section 16 of this Agreement, this
Agreement may only be assigned by any party with the prior written consent
of the other parties.
(d) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby, and to this extent, the
provisions of this Agreement shall be deemed to be severable.
(e) Nothing herein shall be construed as constituting the Portfolio
Manager as an agent of the Manager, or constituting the Manager as an
agent of the Portfolio Manager.
(f) This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ING INVESTORS TRUST
By: /s/ Xxx Xxxxxxxx
-------------------------------
Name: Xxx Xxxxxxxx
-------------------------------
Title: SVP
-------------------------------
DIRECTED SERVICES, LLC
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Vice President
-------------------------------
XXXXXXX CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Title: President
-------------------------------
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SCHEDULE A
COMPENSATION FOR SERVICES TO SERIES
For the services provided by Xxxxxxx Capital Management, LLC ("Portfolio
Manager") to the following Series of ING Investors Trust, pursuant to the
attached Portfolio Management Agreement, the Manager will pay the Portfolio
Manager a fee, computed daily and payable monthly, based on the average daily
net assets of the Series at the following annual rates of the average daily net
assets of the Series:
Series Rate
------ ----
ING Xxxxxxx Growth Portfolio and 0.45% on the first $500 million in
ING Marsico International Opportunities combined assets of these Series;
Portfolio 0.40% on the next $1 billion; and
0.35% thereafter
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