Exhibit 99.B(d)(1)(D)
INVESTMENT MANAGEMENT AGREEMENT
This Agreement is made as of April 29, 2005, between ING Investors Trust
(the "Trust"), a Massachusetts business trust, and Directed Services, Inc. (the
"Manager"), a New York corporation (the "Agreement").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Trust may offer shares of additional series in the future;
WHEREAS, the Trust desires to avail itself of the services of the Manager
for the provision of advisory and management services for the Trust; and
WHEREAS, the Manager is willing to render such services to the Trust.
NOW, THEREFORE, in consideration of the premises, the promises and mutual
covenants herein contained, it is agreed between the parties as follows:
1. APPOINTMENT. The Trust hereby appoints the Manager, subject to the
direction of the Board of Trustees (the "Board"), for the period and on the
terms set forth in this Agreement, to provide advisory, management, and other
services, as described herein, with respect to each series of the Trust set
forth on SCHEDULE A hereto (individually and collectively referred to herein as
"Series"). The Manager accepts such appointment and agrees to render the
services herein set forth for the compensation herein provided.
In the event the Trust establishes and designates additional series (other
than the Series) with respect to which it desires to retain the Manager to
render advisory services hereunder, it shall notify the Manager in writing. If
the Manager is willing to render such services, it shall notify the Trust in
writing, whereupon such additional series shall become a Series hereunder, and
be subject to this Agreement.
Subject to the approval of the Board of Trustees of the Trust, the Manager
is authorized to enter into portfolio management agreements with other
registered investment advisers to serve as investment sub-advisers, whether or
not affiliated with the Manager (each a "Portfolio Manager"). The Manager will
continue to have responsibility for all services furnished pursuant to any
subadvisory agreement (each a "Portfolio Management Agreement"). The Trust and
Manager understand and agree that the Manager may manage each Series in a
"manager-of-managers" style with either a single or multiple portfolio managers,
which contemplates that the Manager will, among other things and pursuant to an
Order issued by the Securities and Exchange Commission (the "SEC") or applicable
regulation under the 1940 Act: (a) continually evaluate the performance of the
Portfolio Managers to the Trust; and (b) periodically make
recommendations to the Trust's Board regarding the results of its evaluation and
monitoring functions. The Trust recognizes that, subject to the approval of the
Board of Trustees of the Trust, a Portfolio Manager's services may be terminated
or modified and that the Manager may appoint a new Portfolio Manager for a
Series, subject to an applicable SEC Order or applicable regulation under the
1940 Act.
2. SERVICES OF THE MANAGER. The Manager represents and warrants that it
is registered as an investment adviser under the Investment Advisers Act of 1940
and will maintain such registration for so long as required by applicable law.
Subject to the general supervision of the Board of the Trust, the Manager shall
provide the following advisory, management, and other services with respect to
the Series:
(a) Provide general, investment advice and guidance with respect to
the Series and provide advice and guidance to the Trust's Trustees, and oversee
the management of the investments of the Series and the composition of each
Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with each Series'
investment objective or objectives and policies as stated in the Trust's current
registration statement, which management may be provided by others selected by
the Manager and approved by the Board as provided below or directly by the
Manager as provided in Section 3 of this Agreement;
(b) In the event that the Manager wishes to select others to render
investment management services, the Manager shall analyze, select and recommend
for consideration and approval by the Trust's Board investment advisory firms
(however organized) to provide investment advice to one or more of the Series,
and, at the expense of the Manager, engage (which engagement may also be by the
Trust) such investment advisory firms to render investment advice and manage the
investments of such Series and the composition of each such Series' portfolio of
securities and investments, including cash, and the purchase, retention and
disposition thereof, in accordance with the Series' investment objective or
objectives and policies as stated in the Trust's current registration statement;
(c) Periodically monitor and evaluate the performance of the
Portfolio Managers with respect to the investment objectives and policies of the
Series;
(d) Monitor the Portfolio Managers for compliance with the investment
objective or objectives, policies and restrictions of each Series, the 1940 Act,
Subchapter M of the Internal Revenue Code, Section 817(h) of the Internal
Revenue Code, to the extent applicable, and if applicable, regulations under
such provisions, and other applicable law;
(e) If appropriate, analyze and recommend for consideration by the
Trust's Board termination of a contract with a Portfolio Manager under which the
Portfolio Manager provides investment advisory services to one or more of the
Series;
(f) Supervise Portfolio Managers with respect to the services that
such Portfolio Managers provide under respective Portfolio Management
Agreements;
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(g) Render to the Board of the Trust such periodic and special
reports as the Board may reasonably request; and
(h) Make available its officers and employees to the Board and
officers of the Trust for consultation and discussions regarding the
administration and management of the Series and services provided to the Trust
under this Agreement.
3. INVESTMENT MANAGEMENT AUTHORITY. In the event the Manager wishes to
render investment management services directly to a Series, then with respect to
any such Series, the Manager, subject to the supervision of the Trust's Board,
will provide a continuous investment program for the Series' portfolio and
determine the composition of the assets of the Series' portfolio, including
determination of the purchase, retention, or sale of the securities, cash, and
other investments contained in the portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Series' assets by determining the securities and
other investments that shall be purchased, entered into, sold, closed, offered
to the public, or exchanged for the Series, when these transactions should be
executed, and what portion of the assets of the Series should be held in the
various securities and other investments in which it may invest, and the Manager
is hereby authorized to execute and perform such services on behalf of the
Series. To the extent permitted by the investment policies of the Series, the
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. The Manager 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 SEC, as amended. Furthermore:
(a) The Manager will manage the Series so that each will qualify as a
regulated investment company under Subchapter M of the Internal Revenue Code and
so as to ensure compliance by the Series with the diversification requirements
of Section 817(h) of the Internal Revenue Code and with any other rules and
regulations pertaining to investment vehicles underlying variable annuity or
variable life insurance policies. In managing the Series in accordance with
these requirements, the Manager shall be entitled to receive and act upon advice
of counsel to the Trust or counsel to the Manager.
(b) The Manager will conform with the 1940 Act and all rules and
regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Trust's Board, and
the provisions of the Registration Statement of the Trust under the Securities
Act of 1933 and the 1940 Act, as supplemented or amended.
(c) On occasions when the Manager deems the purchase or sale of a
security to be in the best interest of the Series as well as any other
investment advisory clients, the Manager may, to the extent permitted by
applicable laws and regulations and any applicable procedures adopted by the
Trust's Board, 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 Manager in a manner
that is fair and equitable in the judgment of the Manager in the exercise of its
fiduciary obligations to the Trust and to such other clients.
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(d) In connection with the purchase and sale of securities of the
Series, the Manager will arrange for the transmission to the custodian for the
Trust on a daily basis, of such confirmation, trade tickets, and other documents
and information, including, but not limited to, Cusip, Cedel, 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 to perform its 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 Manager will arrange for the prompt transmission of the
confirmation of such trades to the Trust's custodian.
(e) The Manager will assist the custodian or portfolio accounting
agent for the Trust in determining, consistent with the procedures and policies
stated in the Registration Statement for the Trust and any applicable procedures
adopted by the Trust's Board, the value of any portfolio securities or other
assets of the Series for which the custodian or portfolio accounting agent seeks
assistance or review from the Manager.
(f) The Manager will make available to the Trust, promptly upon
request, any of the Series' or the Managers' investment records and ledgers as
are necessary to assist the Trust to comply with requirements of the 1940 Act,
as well as other applicable laws. The Manager will furnish to regulatory
authorities having the requisite authority any information or reports in
connection with its 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.
(g) The Manager will regularly report to the Trust's 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 may reasonably request.
(h) In connection with its responsibilities under this Section 3, the
Manager is responsible for decisions to buy and sell securities and other
investments for the Series' portfolio, broker-dealer selection, and negotiation
of brokerage commission rates. The Manager's primary consideration in effecting
a security transaction will be to obtain the best execution for the Series,
taking into account the factors specified in the Prospectus and/or Statement of
Additional Information for the Trust, 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, experience and financial stability of the broker-dealer involved,
the quality of the service, the difficulty of execution, execution capabilities
and operational facilities of the firms involved, and the firm's risk in
positioning a block of securities. Accordingly, the price to the 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 Manager 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 Manager shall not be deemed to have acted unlawfully or to
have breached any duty created by this Agreement or otherwise solely by reason
of its having caused the Series to pay a broker-dealer for effecting a portfolio
investment transaction in excess of the amount of commission another
broker-dealer would have charged for effecting that transaction, if the Manager
determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research
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services provided by such broker-dealer, viewed in terms of either that
particular transaction or The AMENDED EXHIBIT A has also been updated to reflect
4. CONFORMITY WITH APPLICABLE LAW. The Manager, in the performance of its duties
and obligations under this Agreement, shall act in conformity with the
Registration Statement of the Trust and with the instructions and directions of
the Board of the Trust and will conform to, and comply with, the requirements of
the 1940 Act and all other applicable federal and state laws and regulations.
5. EXCLUSIVITY. The services of the Manager to the Trust under this
Agreement are not to be deemed exclusive, and the Manager, or any affiliate
thereof, shall be free to render similar services to other investment companies
and other clients (whether or not their investment objectives and policies are
similar to those of any of the Series) and to engage in other activities, so
long as its services hereunder are not impaired thereby.
6. DOCUMENTS. The Trust has delivered properly certified or authenticated
copies of each of the following documents to the Manager and will deliver to it
all future amendments and supplements thereto, if any:
(a) certified resolution of the Board of the Trust authorizing the
appointment of the Manager and approving the form of this Agreement;
(b) the Registration Statement as filed with the SEC and any
amendments thereto; and
(c) exhibits, powers of attorney, certificates and any and all other
documents relating to or filed in connection with the Registration Statement
described above.
7. RECORDS. The Trust agrees to maintain and to preserve for the periods
prescribed under the 1940 Act any such records as are required to be maintained
by the Trust with respect to the Series by the 1940 Act. The Manager further
agrees that all records of the Series are the property of the Trust and, to the
extent held by the Manager, it will promptly surrender any of such records upon
request.
8. EXPENSES. During the term of this Agreement, the Manager will pay all
expenses incurred by it in connection with its activities under this Agreement,
except such expenses as are assumed by the Trust under this Agreement and such
expenses as are assumed by a Portfolio Manager under its Portfolio Management
Agreement. The Manager further agrees to pay all fees payable to the Portfolio
Managers, executive salaries and expenses of the Trustees of the Trust who are
employees of the Manager or its affiliates, and office rent of the Trust. The
Trust shall be responsible for all of the other expenses of its operations,
including, without limitation, the management fee payable hereunder; brokerage
commissions; interest; legal fees and expenses of attorneys; fees of auditors,
transfer agents and dividend disbursing agents, custodians and shareholder
servicing agents; the expense of obtaining quotations for calculating the
Trust's net asset value; taxes, if any, and the preparation of the Trust's tax
returns; cost of stock certificates and any other expenses (including clerical
expenses) of issue, sale, repurchase or redemption of shares; expenses of
registering and qualifying shares of the Trust under federal and state laws and
regulations (including the salary of employees of the Manager engaged in the
registering and qualifying of shares of the Trust under federal and state laws
and regulations or a pro-rata portion
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of the salary of employees to the extent so engaged); salaries of personnel
involved in placing orders for the execution of the Trust's portfolio
transactions; expenses of disposition or offering any of the portfolio
securities held by a Series; expenses of printing and distributing reports,
notices and proxy materials to existing shareholders; expenses of printing and
filing reports and other documents filed with governmental agencies; expenses in
connection with shareholder and director meetings; expenses of printing and
distributing prospectuses and statements of additional information to existing
shareholders; fees and expenses of Trustees of the Trust who are not employees
of the Manager or any Portfolio Manager, or their affiliates; Board approved
trade association dues; insurance premiums; and extraordinary expenses such as
litigation expenses. To the extent the Manager incurs any costs or performs any
services which are an obligation of the Trust, as set forth herein, the Trust
shall promptly reimburse the Manager for such costs and expenses. To the extent
the services for which the Trust is obligated to pay are performed by the
Manager, the Manager shall be entitled to recover from the Trust only to the
extent of its costs for such services.
9. COMPENSATION. For the services provided by the Manager to each Series
pursuant to this Agreement, the Trust will pay to the Manager an annual fee
equal to the amount specified for such Series in SCHEDULE A hereto, payable
monthly in arrears. Payment of the above fees shall be in addition to any amount
paid to the Manager for the salary of its employees for performing services
which are an obligation of the Trust as provided in Section 8. The fee will be
appropriately pro-rated to reflect any portion of a calendar month that this
Agreement is not in effect between the Manager and the Trust.
10. LIABILITY OF THE MANAGER. The Manager may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
members, officers, directors, employees, or agents shall be subject to any
liability for, or any damages, expenses, or losses incurred 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 of the Manager's duties, or by reason of reckless
disregard of the Manager's obligations and duties under this Agreement. Except
as may otherwise be required by the 1940 Act or the rules thereunder, neither
the Manager nor its members, officers, directors, employees, or agents shall be
subject to any liability for, or any damages, expenses, or losses incurred in
connection with, any act or omission by a Portfolio Manager or any of the
Portfolio Manager's stockholders or partners, officers, directors, employees, or
agents connected with or arising out of any services rendered under a Portfolio
Management Agreement, except by reason of willful misfeasance, bad faith, or
negligence in the performance of the Manager's duties under this Agreement, or
by reason of reckless disregard of the Manager's obligations and duties under
this Agreement. No Trustee, officer, employee or agent of the Trust shall be
subject to any personal liability whatsoever, in his or her official capacity,
to any person, including the Portfolio Manager, other than to the Trust or its
shareholders, in connection with Trust property or the affairs of the Trust,
save only that arising from his or her bad faith, willful misfeasance,
negligence or reckless disregard of his or her duty to such person; and all such
persons shall look solely to the Trust property for satisfaction of claims of
any nature against a Trustee, officer, employee or agent of the Trust arising in
connection with the affairs of the Trust. Moreover, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
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respect to a Series shall be enforceable against the assets and property of that
Series only, and not against the assets or property of any other series of the
Trust.
11. CONTINUATION AND TERMINATION. This Agreement shall become effective on
the date first written above, subject to the condition that the Trust's Board,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 0000 Xxx) of the Manager, and the shareholders of each
Series, shall have approved this Agreement. Unless terminated as provided
herein, the Agreement shall continue in full force and effect with respect to
each Series for two (2) years from the date indicated above, and shall continue
from year to year thereafter with respect to each Series so long as such
continuance is specifically approved at least annually (i) by the vote of a
majority of the Board of the Trust, or (ii) by the vote of a majority of the
outstanding voting shares of the Series (as defined in the 1940 Act), and
provided continuance is also approved by the vote of a majority of the Board 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.
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.
This Agreement may be terminated by the Trust at any time, in its entirety
or with respect to a Series, without the payment of any penalty, by vote of a
majority of the Board of the Trust or by a vote of a majority of the outstanding
voting shares of the Trust, or with respect to a Series, by vote of a majority
of the outstanding voting shares of such Series, on sixty (60) days' written
notice to the Manager, or by the Manager at any time, without the payment of any
penalty, on sixty (60) days' written notice to the Trust. This Agreement will
automatically and immediately terminate in the event of its "assignment" as
described in the 1940 Act.
12. 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. If shareholder approval of an amendment is required under
the 1940 Act, no such amendment shall become effective until approved by a vote
of the majority of the outstanding shares of the Trust. Otherwise, a written
amendment of this Agreement is effective upon the approval of the Board and the
Manager.
13. USE OF NAME. It is understood that the name "Directed Services, Inc.,"
"DSI" or any derivative thereof or logo associated with that name is the
valuable property of the Manager and its affiliates, and that the Trust and/or
the Series have the right to use such name (or derivative or logo) only so long
as this Agreement shall continue with respect to such Trust and/or Series. Upon
termination of this Agreement, the Trust (or Series) shall forthwith cease to
use such name (or derivative or logo) and, in the case of the Trust, shall
promptly amend its Amended and Restated Agreement and Declaration of Trust to
change its name (if such name is included therein).
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14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
15. APPLICABLE LAW.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
(b) 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.
(c) 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
ING INVESTORS TRUST
By: /s/ Xxxxxx X. Naka
------------------
Xxxxxx X. Naka
Senior Vice President
DIRECTED SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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SCHEDULE A
WITH RESPECT TO THE
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING INVESTORS TRUST
AND
DIRECTED SERVICES, INC.
SERIES ANNUAL INVESTMENT MANAGEMENT FEE
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(as a percentage of average daily net assets)
ING FMR(SM) Earnings Growth Portfolio 0.620% on first $500 million;
0.570% on next $250 million;
0.520% on assets over $750 million
ING JPMorgan Value Opportunities Portfolio 0.400%
ING Xxxxxxx International Opportunities Portfolio 0.540%
ING MFS Utilities Portfolio 0.600%
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