Exhibit 99.B(d)(2)(D)
PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made this 31st day of March, 2005, among ING Investors Trust (the
"Trust"), a Massachusetts business trust, Directed Services, Inc. (the
"Manager"), a New York corporation, and Baring International Investment Limited
("Portfolio Manager"), a private limited company incorporated in England and
Wales (company registered no. 1426546).
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 a Management Agreement, effective as of October 24,
1997, as amended, a copy of which has been provided to the Portfolio Manager,
the Trust has retained the Manager to render advisory, management, and
administrative services to many of the Trust's series;
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 Portfolio Manager to the Series designated on SCHEDULE A of
this Agreement (each a "Series") for the periods and on the terms set forth in
this Agreement. The Portfolio Manager accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
In the event the Trust designates one or more series other than the Series
with respect to which the Trust and the Manager wish to retain the Portfolio
Manager to render investment advisory services hereunder, they shall promptly
notify the Portfolio Manager in writing. If the Portfolio Manager is willing to
render such services, it shall so notify the Trust and Manager in writing,
whereupon such series shall become a Series hereunder, and be subject to this
Agreement.
2. PORTFOLIO MANAGEMENT DUTIES AND AUTHORITY. Subject to the supervision
of the Trust's Board of Trustees and the Manager, the Portfolio Manager will
provide a continuous
investment program for each Series' portfolio and determine the composition of
the assets of each Series' portfolio, including determination of the purchase,
retention, or sale of the securities, cash, and other investments contained in
the portfolio. The Portfolio Manager will provide investment research and
conduct a continuous program of evaluation, investment, sales, and reinvestment
of each Series' assets by determining the securities and other investments that
shall be purchased, entered into, sold, closed, or exchanged for the Series,
when these transactions should be executed, and what portion of the assets of
each Series should be held in the various securities and other investments in
which it may invest, and the Portfolio Manager is hereby authorized to execute
and perform such services 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 and purchases and
sales of securities for the Series account and risk and in the name of the
Trust. This authorization shall be a continuing one and shall remain in full
force and effect until this Agreement is terminated in accordance with the
provisions of Section 16 hereof. To the extent permitted by the investment
policies of the 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 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 Portfolio Manager by the
Manager upon filing with the SEC. The Portfolio Manager further agrees as
follows:
(a) The Portfolio Manager will (1) manage each Series so that no
action or omission on the part of the Portfolio Manager will cause a Series
to fail to meet the requirements to qualify as a regulated investment
company specified in Section 851 of the Internal Revenue 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), (2)
manage each Series so that no action or omission on the part of the
Portfolio Manager shall cause a Series to fail to comply with the
diversification requirements of Section 817(h) of the Internal Revenue Code
and regulations issued thereunder, and (3) use reasonable efforts to manage
the Series so that no action or omission on the part of the Portfolio
Manager shall cause a Series to fail to comply with any other rules and
regulations pertaining to investment vehicles underlying variable annuity
or variable life insurance policies. 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
Internal Revenue Code and regulations issued thereunder and of rules or
regulations pertaining to investment vehicles underlying variable annuity
or variable life insurance policies.
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(b) The Portfolio Manager will perform its duties hereunder pursuant
to 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 of Trustees (the "Board") of which
the Portfolio Manager has been notified in writing, and the provisions of
the Registration Statement of the Trust under the Securities Act of 1933
(the "1933 Act") and the 1940 Act, as supplemented or amended, (provided
that the Manager on behalf of the Board has delivered copies of any such
supplement or amendments to the Portfolio Manager).
(c) 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 renew and
amend, from time to time the Portfolio Manager's manner of allocation,
provided further that any requested changes to such manner of allocation
shall be implemented on a prospective basis only.
(d) In connection with the purchase and sale of securities for a
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 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 Portfolio Manager will
arrange for the automatic transmission of the confirmation of such trades
to the Trust's custodian and portfolio accounting agent.
(e) 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 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
except to the extent that the Portfolio Manager exercises judgment with
respect to any such valuation.
(f) The Portfolio Manager will make available to the Trust and the
Manager, promptly upon 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
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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.
(g) 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.
(h) 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. However, the Portfolio Manager
may not retain as subadviser 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 that is retained as subadviser, 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 employee of the Portfolio Manager, any
subadviser that the Portfolio Manager has employed or with which it has
associated with respect to the Series, or any employee thereof has not, to
the best of the Portfolio Manager's knowledge, in any material connection
with the handling of Trust assets:
(i) been convicted, in the last ten (10) years, of any felony
or misdemeanor arising out of conduct involving embezzlement,
fraudulent conversion, or misappropriation of funds or securities,
involving violations of Sections 1341, 1342, or 1343 of Xxxxx 00,
Xxxxxx Xxxxxx Code, or involving the purchase or sale of any security;
or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged
violation of any provision of any state insurance law involving fraud,
deceit, or knowing misrepresentation; or
(iii) been found by any federal or state regulatory authorities,
within the last ten (10) years, to have violated or to have
acknowledged violation of any provision of federal or state securities
laws involving fraud, deceit, or knowing misrepresentation.
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(i) In using spot and forward foreign exchange contracts for the
Series as an investment the parties represent the following:
(i) That the Manager is properly and lawfully established with
full power and authority to enter into spot and forward foreign
exchange contracts, to perform its obligations under such foreign
exchange contracts and to procure the Portfolio Manager to enter into
such foreign exchange contracts on its behalf.
(ii) That the Manager may not, except for purposes of
redemptions, expenses, and other costs of doing business, encumber
funds which the Portfolio Manager has under the Portfolio Manager's
management or which benefit from the Portfolio Manager's investment
advice. If the Manager requires funds for any redemptions, expenses,
and other costs of doing business, the Portfolio Manager will make
funds available in a timely manner for 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 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.
(j) The Portfolio Manager 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 Manager gives the Portfolio Manager
written instructions to the contrary. The Portfolio Manager 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 Manager or
to any agent of the Manager designated by the Manager in writing.
The Portfolio Manager will make appropriate personnel available for
consultation for the purpose of reviewing with representatives of the
Manager 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 Portfolio Manager will submit a written voting recommendation
to the Manager for such proxies. In making such recommendations, the
Portfolio Manager shall use its good faith judgment to act in the best
interests of the Series. The Portfolio Manager 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 Portfolio Manager or
of its affiliates.
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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 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 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 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 Portfolio 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 of Trustees may determine and consistent with Section
28(e) of the Securities Exchange Act of 1934, the Portfolio Manager may effect a
transaction on behalf of the Series with a broker-dealer who provides brokerage
and research services to the Portfolio Manager notwithstanding the fact that the
commissions payable with respect to any such transaction may be greater than the
amount of any commission another broker-dealer might have charged for effecting
that transaction, if the Portfolio Manager determines in good faith that such
amount of commission was reasonable in relation to the value of the brokerage
and research services provided by such broker-dealer, viewed in terms of either
that particular transaction or the Portfolio Manager's or its affiliate's
overall responsibilities with respect to the Series and to their other clients
as to which they exercise investment discretion. To the extent consistent with
these standards, the Portfolio Manager is further authorized to allocate the
orders placed by it on behalf of the Series to the Portfolio Manager if it is
registered as a broker-dealer with the SEC, to any of its affiliated
broker-dealer, or to such brokers and dealers who also provide research or
statistical material, or other services to the Series, the Portfolio Manager, or
an affiliate of the Portfolio Manager. 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.
4. DISCLOSURE ABOUT PORTFOLIO MANAGER. The Portfolio Manager has
reviewed the post-effective amendment to the Registration Statement for the
Trust filed with the SEC that contains disclosure about the Portfolio Manager,
and represents and warrants that, with respect to the disclosure about or
information concerning the Portfolio Manager, to the Portfolio Manager's
knowledge, such Registration Statement contains, as of the date hereof, no
untrue statement of any material fact and does not omit any statement of a
material fact which was required to be stated therein or necessary to make the
statements contained therein not misleading. The Portfolio Manager further
represents and warrants that it is a duly registered investment adviser under
the Advisers Act, or alternatively that it is not required to be a registered
investment adviser under the Advisers Act to perform the duties described in
this Agreement, and that it is a duly registered investment adviser in all
states in which the Portfolio Manager is required to be registered.
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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;
(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) Costs of printing stock certificates representing shares of the
Trust;
(n) Trustees' fees and expenses to trustees who are not officers,
employees, or stockholders of the Portfolio Manager or any affiliate
thereof;
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(o) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(p) Association membership dues;
(q) 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
(r) Organizational and offering expenses.
6. COMPENSATION. For the services provided, the Manager will pay the
Portfolio Manager a fee, payable as described in SCHEDULE A.
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 Portfolio Manager agrees that it shall promptly notify the
Manager and the Trust (1) in the event that the SEC or other governmental
authority has censured the Portfolio Manager; placed limitations upon its
activities, functions or operations; suspended or revoked its registration,
if any, as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions, (2) upon having a
reasonable basis for believing that the Series has ceased to qualify or
might not qualify as a regulated investment company under Subchapter M of
the Internal Revenue Code of 1986, as amended (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 Portfolio Manager further agrees to notify
the Manager and the Trust promptly of any material fact known to the
Portfolio Manager respecting or relating to the Portfolio Manager that is
not contained in the Registration Statement as then in effect, and is
required to be stated therein or necessary to make the statements therein
not misleading, or of any statement contained therein that becomes untrue
in any material respect.
(b) The Manager agrees that it shall immediately notify the Portfolio
Manager (1) in the event that the SEC has censured the Manager or the
Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Manager's registration as an
investment adviser; or has commenced proceedings or an investigation that
may result in any of these actions, (2) upon having a reasonable basis for
believing that the Series has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Code, or (3) upon
having a reasonable
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basis for believing that the Series has ceased to comply with the
diversification provisions of Section 817(h) of the Code or the regulations
thereunder.
9. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Portfolio Manager hereby agrees that all records which
it maintains for the Series are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's or the
Manager's 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. 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.
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, Baring Asset Management, Inc. or any of its affiliates
(other than the Manager), or that use any derivative of the name Baring
Asset Management or any logo associated therewith. The Trust and the
Manager agree that they will not use any such material without the prior
consent of the Portfolio Manager, which consent shall not be unreasonably
withheld. In the event of the termination of this Agreement, the Trust and
the Manager will furnish to the Portfolio Manager copies of any of the
above-mentioned materials that refer or relate in any way to the Portfolio
Manager;
(b) the Trust and the Manager will furnish to the Portfolio Manager
such information relating to either of them or the business affairs of the
Trust as the Portfolio Manager shall from time to time reasonably request
in order to discharge its obligations hereunder;
(c) the Manager and the Trust agree that neither the Trust, the
Manager, nor affiliated persons of the Trust or the Manager shall give any
information or make any representations or statements in connection with
the sale of shares of the Series concerning the Portfolio Manager or the
Series other than the information or representations contained in the
Registration Statement, prospectus, or statement of 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.
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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 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 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.
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 (1) may be based upon any violations of
willful misconduct, malfeasance, bad faith or gross negligence by the
Manager, any of its employees or representatives, or any affiliate of or
any person acting on behalf of the Manager, 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 Manager and contained in the
Registration Statement or prospectus covering shares of the Trust or a
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;
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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, within the meaning of Section 15 of the 1933 Act, controls
("controlling person") 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 (1) may be based upon any
violations of willful misconduct, malfeasance, bad faith or gross
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, (2) may be based upon a failure to comply with Section
2, Paragraph (a) of this Agreement, or (3) any breach of any
representations or warranties contained in Section 4; provided, however,
that in no case shall the indemnity in favor of a Manager Indemnified
Person be deemed to protect such person against any liability to which any
such person would otherwise be subject by reason of willful misfeasance,
bad faith, negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties under this Agreement.
(c) 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 otherwise than on
account of this Section 15. 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
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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 otherwise than on
account of this Section 15. In case any such action is brought against the
Manager Indemnified Person, the Portfolio Manager will be entitled to
participate, at its own expense, in the defense thereof or, after notice to
the Manager Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person. If the Portfolio Manager
assumes the defense of any such action and the selection of counsel by the
Portfolio Manager to represent both the Portfolio Manager and the Manager
Indemnified Person 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.
(e) The Manager shall not be liable under this Section 15 to
indemnify and hold harmless the Portfolio Manager and the Portfolio Manager
shall not be liable under this Section 15 to indemnify and hold harmless
the Manager with respect to any losses, claims, damages, liabilities, or
litigation that first become known to the party seeking
12
indemnification during any period that the Portfolio Manager is, within the
meaning of Section 15 of the 1933 Act, a controlling person of the Manager.
16. DURATION AND TERMINATION. This Agreement shall become effective on
the date first indicated above. Unless terminated as provided herein, the
Agreement shall remain in full force and effect until NOVEMBER 30, 2006 and
continue on an annual basis thereafter with respect to each Series; provided
that such annual continuance is specifically approved each year by (a) the vote
of a majority of the entire Board of Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities (as defined in the 0000 Xxx) of
each Series, and (b) the vote of a majority of those Trustees who are not
parties to this Agreement or interested persons (as such term is defined in the
0000 Xxx) of any such party to this Agreement cast in person at a meeting called
for the purpose of voting on such approval. The Portfolio Manager shall not
provide any services for such Series or receive any fees on account of such
Series with respect to which this Agreement is not approved as described in the
preceding sentence. However, any approval of this Agreement by the holders of a
majority of the outstanding shares (as defined in the 0000 Xxx) of a Series
shall be effective to continue this Agreement with respect to such Series
notwithstanding (i) that this Agreement has not been approved by the holders of
a majority of the outstanding shares of any other Series or (ii) that this
agreement has not been approved by the vote of a majority of the outstanding
shares of the Trust, unless such approval shall be required by any other
applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated for each or
any Series hereunder: (a) by the Manager at any time without penalty, upon sixty
(60) days' written notice to the Portfolio Manager and the Trust, (b) at any
time without payment of any penalty by the 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) day's written notice to the Manager and the
Portfolio Manager, or (c) by the Portfolio Manager at any time without penalty,
upon sixty (60) days written notice to the Manager and the Trust. In addition,
this Agreement shall terminate with respect to a Series in the event that it is
not initially 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 18 of this
Agreement shall remain in effect, as well as any applicable provision of this
Paragraph numbered 16.
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, and (ii) the holders of a majority of the
outstanding voting securities of
13
the Series, cast in person at a meeting called for the purpose of voting on such
approval, if such approval is required by applicable law.
18. USE OF NAME.
(a) It is understood that the name "Directed Services, Inc." or any
derivative thereof or logo associated with that name is the valuable
property of the Manager and/or its affiliates, and that the Portfolio
Manager has the right to use such name (or derivative or logo) only with
the approval of the Manager and only so long as the Manager is Manager to
the Trust and/or the Series. Upon termination of the Management Agreement
between the Trust and the Manager, the Portfolio Manager shall as soon as
is reasonably possible cease to use such name (or derivative or logo).
(b) It is understood that the name "Baring International Investment
Limited" or any derivative thereof or logo associated with that name is the
valuable property of the Portfolio Manager and its affiliates and that the
Trust and/or the Series have the right to use such name (or derivative or
logo) 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 name (or derivative or logo).
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. FINANCIAL SERVICES AUTHORITY.
(a) The Portfolio Manager is authorized and regulated by the
Financial Services Authority of the United Kingdom ("FSA"). Under the rules
of the FSA, clients must be placed in specific categories which are
dictated by different considerations including the nature and financial
description of the client, the experience of the client in certain
investments and other factors. On the basis of the information given by the
Manager, it is categorized by the Portfolio Manager as an Intermediate
Customer in relation to the services to be provided in accordance with the
Agreement.
(b) The Portfolio Manager has written procedures in operation in
accordance with FSA rules for the effective consideration and proper
handling of client complaints. Manager acknowledges receipt more than 48
hours prior to the execution of this Agreement of separate disclosure
relating to the Portfolio Manager's Terms of Business as required by FSA
rules.
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21. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State of
Delaware, without giving effect to the provisions, policies or principals
thereof relating to choice or conflict of laws, provided that nothing
herein shall be construed in a manner inconsistent with the 1940 Act, the
Advisers Act or rules or orders of the SEC thereunder. The term "affiliate"
or "affiliated person" as used in this Agreement shall mean "affiliated
person" as defined in Section 2(a)(3) of the 0000 Xxx.
(b) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(c) 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.
15
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:
----------------------------
Name:
----------------------------
Title:
----------------------------
DIRECTED SERVICES, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
BARING INTERNATIONAL INVESTMENT LIMITED
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
16
SCHEDULE A
COMPENSATION FOR SERVICES TO SERIES
For the services provided by Baring International Investment Limited
("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 Hard Assets Portfolio 0.40%
17
