EXHIBIT (e)(3)
DISTRIBUTION AGREEMENT
AGREEMENT, made this ___ day of August, 2003, by and between ING
Investors Trust (the "Trust"), a Massachusetts business trust, and Directed
Services, Inc. ("Distributor"), a New York corporation.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a diversified open-end investment company
and offers its shares continuously to separate accounts of insurance companies
("Separate Accounts") to serve as an investment option under variable annuity
contracts or variable life insurance policies issued by the insurance companies;
and its shares may be sold in the future to separate accounts of other
affiliated or unaffiliated insurance companies; and
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934 and is a member of the National Association of
Securities Dealers, Inc. ("NASD"); and
WHEREAS, the Trust and the Distributor wish to enter into this
Agreement whereby the Distributor will act as the Trust's principal underwriter
for the sale of shares of the Funds listed on the attached SCHEDULE A comprising
the Trust to the Separate Accounts.
NOW, THEREFORE, the parties hereto agree as follows:
1. APPOINTMENT OF THE DISTRIBUTOR
The Trust hereby appoints the Distributor as the principal
underwriter and distributor of the Trust to sell shares of the Trust's Funds to
the Separate Accounts and any other persons, and the Distributor hereby accepts
such appointment.
2. PURCHASE OF SHARES FROM THE TRUST
A. The Trust herewith engages the Distributor to act as
exclusive distributor of the shares of its separate series, and any other series
which may be designated from time to time hereafter ("Funds"), named and
described on SCHEDULE A attached hereto and incorporated by reference. Said
sales shall be made only to investors eligible to invest in a registered
investment company consistent with such company's serving as an investment
vehicle for variable annuities and variable life insurance company contracts.
Distributor need not hold itself available to receive by mail, telex and/or
telephone, orders for the purchase of shares.
B. All shares sold by the Distributor under this
Agreement shall be sold at the net asset value per share ("Offering Price")
determined in the manner described in the Trust's prospectus, as it may be
amended from time to time.
3. REDEMPTION OF SHARES BY THE TRUST
A. Any of the outstanding shares of each Fund may be
tendered for redemption at any time, and the Trust agrees to redeem any such
shares so tendered in accordance with the applicable provisions of the
prospectus and the Trust's Trust Instrument and By-Laws. The redemption price is
the net asset value per share next determined after the initial receipt of
proper request for redemption.
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B. The right to redeem shares or to receive payment with
respect to any redemption may be suspended only in accordance with applicable
law.
4. DUTIES OF THE TRUST
A. The Trust shall furnish to the Distributor copies of
all information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of the shares of
the Trust.
B. The Trust shall take, from time to time, subject to
the necessary approval of its shareholders, all necessary action to fix the
number of its authorized shares and to register shares under the Securities Act
of 1933, as amended (the "1933 Act"), in order that there will be available for
sale at least the number of shares as investors may reasonably be expected to
purchase.
5. DUTIES OF THE DISTRIBUTOR
In selling the shares of the Trust, the Distributor shall use
its reasonable best efforts to conform with the requirements of all applicable
federal and state laws and regulations, and the regulations of the NASD,
relating to the sale of such securities. Except as provided below, the
Distributor is not authorized by the Trust to give any information or make any
representations, other than those contained in the registration statement for
the Trust and its shares, the prospectus, and any sales literature specifically
approved by a principal of the Distributor. The Distributor shall furnish
applicable federal and state regulatory authorities with any information or
reports in connection with its services under this Agreement, which such
authorities may request in order to ascertain whether the Trust's operations are
being conducted in a manner consistent with any applicable law or regulations.
Nothing contained in this Agreement shall prevent the Distributor from entering
into distribution agreements with other investment companies.
6. ALLOCATION OF EXPENSES
A. The Trust will pay the following expenses in
connection with the sales and distribution of shares of the Funds.
1. expenses pertaining to the preparation of
its audited and certified financial statements to be included in any
amendments ("Amendments") to the Trust's registration statement under
the 1933 Act, including the prospectus and Statement of Additional
Information ("SAI") included therein;
2. expenses pertaining to the preparation,
printing, and distribution of any reports or communications, including
the prospectus and SAI, which are sent to existing shareholders of the
Trust;
3. filing and other fees to federal and state
securities regulatory authorities necessary to register and maintain
registration of the shares; and
4. expenses of the Trust's administration,
including all costs and expenses in connection with the issuance,
transfer and registration of the shares, including, but not limited to,
any taxes and other governmental charges in connection therewith.
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B. The Distributor will pay the following expenses:
1. expenses of printing additional copies of
the prospectus and SAI and any Amendments or supplements thereto which
are necessary to continue to offer shares of the Trust's Funds to the
public; and
2. expenses pertaining to the printing of
additional copies, for use by the Distributor as sales literature, of
reports or other communications which have been prepared for
distribution to existing shareholders of the Trust or incurred by the
Distributor in advertising, promoting and selling shares of the Trust's
Funds.
7. COMPENSATION
The Trust shall not pay any compensation to the Distributor
for its services as a distributor hereunder, nor shall the Trust reimburse the
Distributor for any expenses related to such services except to the extent
permitted under a distribution plan adopted by the Trust pursuant to Rule 12b-1
under the Investment Company Act of 1940, as amended ("1940 Act"). Distributor
shall receive a fee described in any distribution plan adopted by the Trust
pursuant to Rule 12b-1 under the 1940 Act.
8. RECORDS
All records maintained by the Trust in connection with the
sale of its shares shall be the property of the Trust and, to the extent held by
the Distributor, shall be returned to the Trust upon termination of this
Agreement, free from any claims or retention of rights by the Distributor.
9. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective on the date first
written above, subject to the condition that the Trust's Board of Trustees
("Board"), including a majority of those Trustees who are not interested persons
(as such term is defined in the 0000 Xxx) of the Trust shall have approved this
Agreement.. Unless terminated as provided herein, the Agreement shall continue
in full force and effect through September 1, 2004, and shall continue in effect
from year to year thereafter with respect to each Fund so long as such
continuance is specifically approved at least annually (i) by a vote of a
majority of the outstanding voting securities of such Funds (as defined in the
0000 Xxx) or (ii) by a vote of a majority of the Trustees of the Trust,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 1940 Act), cast in person at a meeting called for the
purpose of voting on this Agreement.
However, any approval of this Agreement by the holders of a
majority of the outstanding voting securities (as defined in the 0000 Xxx) of a
Fund shall be effective to continue this Agreement with respect to such Fund
notwithstanding (i) that this Agreement has not been approved by the holders of
a majority of the outstanding voting securities of any other Fund, or (ii) that
this Agreement has not been approved by the vote of a majority of the
outstanding voting securities of the Trust, unless such approval shall be
required by any other applicable law or otherwise.
This Agreement may be terminated as to a particular Fund at
any time on sixty (60) days' written notice, without the payment of any penalty,
by the Trust (by vote of a majority of the
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Board of Trustees of the Trust or by a vote of a majority of the outstanding
voting securities of such Fund) or by the Distributor. This Agreement shall
terminate automatically in the event of its assignment as described in the 1940
Act and the rules and interpretations thereunder.
10. MISCELLANEOUS
This Agreement shall be subject to the laws of the
Commonwealth of Massachusetts and shall be interpreted and construed to further
and promote the operation of the Trust as an open-end investment company. As
used herein, the terms "Net Asset Value," "Investment Company," "Open-End
Investment Company," "Assignment," "Principal Underwriter," "Interested Person,"
and "Majority of the Outstanding Voting Securities," shall have the meanings set
forth in the 1940 Act and 1933 Act , as applicable, and the rules and
regulations promulgated thereunder.
11. LIABILITY
Nothing contained herein shall be deemed to protect the
Distributor against any liability to the Trust or its shareholders to which the
Distributor would otherwise be subject by reason of willful misfeasance, bad
faith or negligence in the performance of the Distributor's duties hereunder, or
by reason of the Distributor's reckless disregard of its obligations and duties
hereunder.
12. 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. In
addition, the Distributor agrees that the obligations assumed by the Trust on
behalf of the Funds pursuant to this Agreement shall be limited in all cases to
the applicable Funds and its assets, and the Distributor shall not seek
satisfaction of any such obligation from any other funds of the Trust. The
Distributor understands that the assets and liabilities, and the rights and
obligations associated therewith of each Fund under the Declaration are separate
and distinct from those of any and all other Funds.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers below as of the day and year first above written.
ING INVESTORS TRUST
By: ___________________________________
Xxxxxx X. Naka
Senior Vice President
DIRECTED SERVICES, INC.
By: ___________________________________
Name:______________________________
Title:_____________________________
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SCHEDULE A
WITH RESPECT TO THE
DISTRIBUTION AGREEMENT
ING INVESTORS TRUST
FUNDS
ING American Funds Growth Portfolio
ING American Funds International Portfolio
ING American Funds Growth-Income Portfolio
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