Exhibit 99.B-(d)(2)(AA)
SUB-ADVISORY AGREEMENT
ING INVESTORS TRUST
AGREEMENT made this 29th day of July 2005 between ING Investments, LLC,
an Arizona limited liability company (the "Manager"), and ING Investment
Management Advisors B.V., an indirect wholly owned subsidiary of ING Groep N.V.,
domiciled in The Hague, The Netherlands (the "Sub-Adviser").
WHEREAS, ING Investors Trust (the "Trust") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
management investment company; and
WHEREAS, the Trust is authorized to issue separate series, each series
having its own investment objective or objectives, policies, and limitations;
and
WHEREAS, the Trust may offer shares of additional series in the future;
and
WHEREAS, pursuant to a Management Agreement, dated February 25, 2004,
and subsequently amended (the "Management Agreement"), a copy of which has been
provided to the Sub-Adviser, the Trust has retained the Manager to render
advisory and management services with respect to certain of the Trust's series;
and
WHEREAS, pursuant to authority granted to the Manager in the Management
Agreement, the Manager wishes to retain the Sub-Adviser to furnish investment
advisory services to one or more of the series of the Trust, and the Sub-Adviser
is willing to furnish such services to the Trust and the Manager.
NOW, THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Manager and the
Sub-Adviser as follows:
1. APPOINTMENT. The Manager hereby appoints the Sub-Adviser to act
as the investment adviser and manager to the series of the Trust set forth on
SCHEDULE A hereto (the "Series") for the periods and on the terms set forth in
this Agreement. The Sub-Adviser accepts such appointment and agrees to furnish
the services herein set forth for the compensation herein provided.
In the event the Trust designates one or more series (other than the
Series) with respect to which the Manager wishes to retain the Sub-Adviser to
render investment advisory services hereunder, it shall notify the Sub-Adviser
in writing. If the Sub-Adviser is willing to render such services, it shall
notify the Manager in writing, whereupon such series shall become a Series
hereunder, and be subject to this Agreement.
2. SUB-ADVISER DUTIES. Subject to the supervision of the Trust's
Board of Trustees and the Manager, the Sub-Adviser will provide a continuous
investment program for each Series'
portfolio and determine in its discretion the composition of the assets of each
Series' portfolio, including determination of the purchase, retention, or sale
of the securities, cash, and other investments contained in the portfolio. The
Sub-Adviser will provide investment research and conduct a continuous program of
evaluation, investment, sales, and reinvestment of each Series' assets by
determining the securities and other investments that shall be purchased,
entered into, sold, closed, or exchanged for the Series, when these transactions
should be executed, and what portion of the assets of the Series should be held
in the various securities and other investments in which it may invest. To the
extent permitted by the investment policies of each Series, the Sub-Adviser
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 Sub-Adviser 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 amended, copies of
which shall be sent to the Sub-Adviser by the Manager prior to the commencement
of this Agreement and promptly following any such amendment. The Sub-Adviser
further agrees as follows:
(a) The Sub-Adviser 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 of Trustees of which the Sub-Adviser has been sent a
copy, and the provisions of the Registration Statement of the Trust
filed under the Securities Act of 1933 (the "1933 Act") and the 1940
Act, as supplemented or amended, of which the Sub-Adviser has received
a copy, and with the Manager's portfolio manager operating policies and
procedures as in effect on the date hereof, as such policies and
procedures may be revised or amended by the Manager and agreed to by
the Sub-Adviser. In carrying out its duties under the Sub-Advisory
Agreement, the Sub-Adviser will comply with the following policies and
procedures:
(i) The Sub-Adviser will (1) manage each Series so that
it meets the income and asset diversification requirements of
Section 851 of the Internal Revenue Code of 1986, as amended (the
"Code"), and (2) manage each Series so that no action or omission
on the part of the Sub-Adviser shall cause a Series to fail to
comply with the diversification requirements of Section 817(h) of
the Code, and the regulations issued thereunder.
(ii) The Sub-Adviser will have no duty to vote any proxy
solicited by or with respect to the issuers of securities in
which assets of the Series are invested unless the Manager gives
the Sub-Adviser written instructions to the contrary. The
Sub-Adviser will immediately forward any proxy solicited by or
with respect to the issuers of securities in which assets of the
Series are invested to the Manager or to any agent of the Manager
designated by the Manager in writing.
The Sub-Adviser 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
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in which assets of the Series are invested. Upon request, the
Sub-Adviser will submit a written voting recommendation to the
Manager for such proxies. In making such recommendations, the
Sub-Adviser shall use its good faith judgment to act in the best
interests of the Series. The Sub-Adviser shall disclose to the
best of its knowledge any conflict of interest with the issuers
of securities that are the subject of such recommendation
including whether such issuers are clients or are being solicited
as clients of the Sub-Adviser or of its affiliates.
(iii) In connection with the purchase and sale of
securities for each Series, the Sub-Adviser will arrange for the
transmission to the custodian and portfolio accounting agent for
the Series on a daily basis, such confirmation, trade tickets,
and other documents and information, including, but not limited
to, Cusip, Sedol, or other numbers that identify securities to be
purchased or sold on behalf of the Series, as may be reasonably
necessary to enable the custodian and portfolio accounting agent
to perform its administrative and record keeping responsibilities
with respect to the Series. With respect to portfolio securities
to be settled through the Depository Trust Company, the
Sub-Adviser will arrange for the prompt transmission of the
confirmation of such trades to the Trust's custodian and
portfolio accounting agent.
(iv) The Sub-Adviser will assist the custodian and
portfolio accounting agent for the Trust in determining or
confirming, consistent with the procedures and policies stated in
the Registration Statement for the Trust or adopted by the Board
of Trustees, the value of any portfolio securities or other
assets of the Series for which the custodian and portfolio
accounting agent seeks assistance from or identifies for review
by the Sub-Adviser. The parties acknowledge that the Sub-Adviser
is not a custodian of the Series' assets and will not take
possession or custody of such assets.
(v) The Sub-Adviser will provide the Manager, no later
than the 10th business day following the end of each Series'
semi-annual period and fiscal year, a letter to shareholders (to
be subject to review and editing by the Manager) containing a
discussion of those factors referred to in Item 5(a) of 1940 Act
Form N-1A in respect of both the prior quarter and the fiscal
year to date.
(vi) The Sub-Adviser will complete and deliver to the
Manager a written compliance checklist in a form provided by the
Manager for each month by the 10th business day of the following
month.
(b) The Sub-Adviser will complete and deliver to the Manager by
the 10th business day of each month a written report on each Series of
the Trust that contains the following information as of the immediately
previous month's end.
(i) A performance comparison to the Series benchmark
listed in the prospectus as well as a comparison to other mutual
funds as listed in the rankings prepared by Lipper Analytical
Services, Inc., Morningstar, Inc., or similar
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independent services that monitor the performance of mutual funds
or with other appropriate indexes of investment securities;
(ii) Composition of the assets of each Series' portfolio
and the impact of key portfolio holdings and sector
concentrations on the Series; and
(iii) Confirmation of each Series' current investment
objective and Sub-Adviser's projected plan to realize the Series'
investment objectives.
(c) The Sub-Adviser will contact Morningstar to clarify any
style box conflicts with each Series' style and the anticipated
timeframe in which Morningstar will remedy such conflicts, if any.
(d) The Sub-Adviser will make available to the Trust and the
Manager, promptly upon request, any of the Series' investment records
and ledgers maintained by the Sub-Adviser (which shall not include the
records and ledgers maintained by the custodian or 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 Sub-Adviser will furnish to regulatory authorities having the
requisite authority any information or reports in connection with such
services in respect to the Series 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.
(e) The Sub-Adviser will provide reports to the Trust's Board
of Trustees for consideration at meetings of the Board of Trustees on
the investment program for each Series and the issuers and securities
represented in each Series' portfolio, and will furnish the Trust's
Board of Trustees with respect to each Series such periodic and special
reports as the Trustees and the Manager may reasonably request.
3. BROKER-DEALER SELECTION. The Sub-Adviser is authorized to make
decisions to buy and sell securities and other investments for each Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
rates in effecting a security transaction. The Sub-Adviser'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, and
determined in consultation with the Manager, 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 firm involved, and the
firm's risk in positioning a block of securities. Accordingly, the price to a
Series in any transaction may be less favorable than that available from another
broker-dealer if the difference is reasonably justified, in the judgment of the
Sub-Adviser in the exercise of its fiduciary obligations to the Trust, by other
aspects of the portfolio execution services offered. Subject to such policies as
the Trust's Board of Trustees or Manager may determine and consistent with
Section 28(e) of the Securities Exchange Act of 1934, the Sub-Adviser shall not
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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 a 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 Sub-Adviser determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer, viewed in terms of either that
particular transaction or the Sub-Adviser's or the Manager's overall
responsibilities with respect to the Series and to their respective other
clients as to which they exercise investment discretion. The Sub-Adviser 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. To the extent consistent with these
standards, the Sub-Adviser is further authorized to allocate the orders placed
by it on behalf of a Series to the Sub-Adviser if it is registered as a
broker-dealer with the SEC, to an affiliated broker-dealer, or to such brokers
and dealers who also provide research or statistical material, or other services
to the Series, the Sub-Adviser, or an affiliate of the Sub-Adviser. Such
allocation shall be in such amounts and proportions as the Sub-Adviser shall
determine consistent with the above standards, and the Sub-Adviser will report
on said allocation regularly to the Trust's Board of Trustees indicating the
broker-dealers to which such allocations have been made and the basis therefor.
4. DISCLOSURE ABOUT SUB-ADVISER. The Sub-Adviser has reviewed the
most recent Post-Effective Amendment to the Registration Statement for the Trust
filed with the SEC that contains disclosure about the Sub-Adviser, and
represents and warrants that, with respect to the disclosure about the
Sub-Adviser or information relating, directly or indirectly, to the Sub-Adviser,
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, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will maintain such
registration so long as this Agreement remains in effect. The Sub-Adviser will
provide the Manager with a copy of the Sub-Adviser's Form ADV, Part II at the
time the Form ADV, Part I is filed with the SEC.
5. EXPENSES. During the term of this Agreement, the Sub-Adviser will
pay all expenses incurred by it and its staff and for their activities in
connection with its portfolio management duties under this Agreement. The
Manager or the Trust shall be responsible for all the expenses of the Trust's
operations. In addition, if the Trust is required, under applicable law, to
supplement the Registration Statement because of a change requested by the
Sub-Adviser, the Sub-Adviser will reimburse the Trust and/or the Manager for the
cost of preparing, printing and distributing such supplement, unless the
Sub-Adviser is requesting the change in order to comply with an applicable law,
rule or regulation.
6. COMPENSATION. For the services provided to each Series, the
Manager will pay the Sub-Adviser an annual fee equal to the amount specified for
such Series in SCHEDULE A hereto, payable monthly in arrears. The fee will be
appropriately prorated to reflect any portion of a calendar month that this
Agreement is not in effect among the parties. In accordance with the provisions
of the Management Agreement, the Manager is solely responsible for the payment
of
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fees to the Sub-Adviser, and the Sub-Adviser agrees to seek payment of its fees
solely from the Manager; provided, however, that if the Trust fails to pay the
Manager all or a portion of the management fee under said Management Agreement
when due, and the amount that was paid is insufficient to cover the
Sub-Adviser's fee under this Agreement for the period in question, then the
Sub-Adviser may enforce against the Trust any rights it may have as a
third-party beneficiary under the Management Agreement and the Manager will take
all steps appropriate under the circumstances to collect the amount due from the
Trust.
7. MARKETING MATERIALS.
(a) During the term of this Agreement, the Sub-Adviser agrees
to furnish the Manager at its principal office for prior review and
approval by the Manager all written and/or printed materials, including
but not limited to, PowerPoint(R) or slide presentations, news
releases, advertisements, brochures, fact sheets and other promotional,
informational or marketing materials (the "Marketing Materials") for
internal use or public dissemination, that are produced or are for use
or reference by the Sub-Adviser, its affiliates or other designees,
broker-dealers or the public in connection with the Series, and
Sub-Adviser shall not use any such materials if the Manager reasonably
objects in writing within five business days (or such other period as
may be mutually agreed) after receipt thereof. Marketing Materials may
be furnished to the Manager by first class or overnight mail, facsimile
transmission equipment, electronic delivery or hand delivery.
(b) During the term of this Agreement, the Manager agrees to
furnish the Sub-Adviser at its principal office all prospectuses, proxy
statements, reports to shareholders, or Marketing Materials prepared
for distribution to shareholders of each Series, or the public that
refer to the Sub-Adviser in any way, prior to the use thereof, and the
Manager shall not use any such materials if the Sub-Adviser reasonably
objects in writing within five business days (or such other period as
may be mutually agreed) after receipt thereof. The Sub-Adviser's right
to object to such materials is limited to the portions of such
materials that expressly relate to the Sub-Adviser, its services and
its clients. The Manager agrees to use its reasonable best efforts to
ensure that materials prepared by its employees or agents or its
affiliates that refer to the Sub-Adviser or its clients in any way are
consistent with those materials previously approved by the Sub-Adviser
as referenced in the first sentence of this paragraph. Marketing
Materials may be furnished to the Sub-Adviser by first class or
overnight mail, facsimile transmission equipment, electronic delivery
or hand delivery.
8. COMPLIANCE.
(a) The Sub-Adviser agrees to use reasonable compliance
techniques as the Manager or the Board of Trustees may adopt, including
any written compliance procedures.
(b) The Sub-Adviser agrees that it shall promptly notify the
Manager and the Trust (i) in the event that the SEC has censured the
Sub-Adviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration as an
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investment adviser; or has commenced proceedings or an investigation
that may result in any of these actions, or (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 Internal Revenue Code. The Sub-Adviser further agrees to notify
the Manager and the Trust promptly of any material fact known to the
Sub-Adviser respecting or relating to the Sub-Adviser that is not
contained in the Registration Statement or prospectus for the Trust
(which describes the Series), or any amendment or supplement thereto,
or if any statement contained therein that becomes untrue in any
material respect.
(c) The Manager agrees that it shall promptly notify the
Sub-Adviser (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, or (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 Internal Revenue Code.
9. BOOKS AND RECORDS. The Sub-Adviser hereby agrees that all records
which it maintains for the Series are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
or the Manager's request in compliance with the requirements of Rule 31a-3 under
the 1940 Act, although the Sub-Adviser may, at its own expense, make and retain
a copy of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-l under the 1940 Act.
10. COOPERATION; CONFIDENTIALITY. Each party to this Agreement agrees
to cooperate with the other party and with all appropriate governmental
authorities having the requisite jurisdiction (including, but not limited to,
the SEC) in connection with any investigation or inquiry relating to this
Agreement or the Trust. Subject to the foregoing, the Sub-Adviser shall treat as
confidential all information pertaining to the Trust and actions of the Trust,
the Manager and the Sub-Adviser, 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 Sub-Adviser, in connection with its duties under the
Agreement except that the aforesaid information need not be treated as
confidential if required to be disclosed under applicable law, if generally
available to the public through means other than by disclosure by the
Sub-Adviser or the Manager, or if available from a source other than the
Manager, Sub-Adviser or the Trust.
11. NON-EXCLUSIVITY. The services of the Sub-Adviser to the Series
and the Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to render investment advisory or other services to others (including other
investment companies) and to engage in other activities.
12. PROHIBITED CONDUCT. The Sub-Adviser may not consult with any
other sub-adviser of the Trust concerning transactions in securities or other
assets for any investment portfolio of the Trust, including the Series, except
that such consultations are permitted between the current
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and successor sub-advisers of the Series in order to effect an orderly
transition of sub-advisory duties so long as such consultations are not
concerning transactions prohibited by Section 17(a) of the 1940 Act.
13. REPRESENTATIONS RESPECTING SUB-ADVISER. The Manager agrees that
neither the Manager, nor affiliated persons of the Manager, shall give any
information or make any representations or statements in connection with the
sale of shares of the Series concerning the Sub-Adviser or the Series other than
the information or representations contained in the Registration Statement,
prospectus, or statement of additional information for the Trust's shares, as
they may be amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
14. CONTROL. Notwithstanding any other provision of the Agreement,
it is understood and agreed that the Trust shall at all times retain the
ultimate responsibility for and control of all functions performed pursuant to
this Agreement and has reserved the right to reasonably direct any action
hereunder taken on its behalf by the Sub-Adviser.
15. LIABILITY. Except as may otherwise be required by the 1940 Act or
the rules thereunder or other applicable law, the Manager agrees that the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls the Sub-Adviser
(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, 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 of the
Sub-Adviser's duties, or by reason of reckless disregard of the Sub-Adviser's
obligations and duties under this Agreement.
16. INDEMNIFICATION.
(a) The Manager agrees to indemnify and hold harmless the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person,
if any, who, within the meaning of Section 15 of the 1933 Act controls
("controlling person") the Sub-Adviser (all of such persons being
referred to as "Sub-Adviser Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal
and other expenses) to which a Sub-Adviser Indemnified Person may
become subject under the 1933 Act, the 1940 Act, the Advisers Act,
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 the
Manager's negligence, willful misfeasance, or bad faith in the
performance of its duties (which could include a negligent action or a
negligent omission to act), or by reason of the Manager's reckless
disregard of its obligations and duties under this Agreement, or (2)
may be based upon any untrue statement or alleged untrue statement of a
material fact 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 required to be stated therein or necessary to
make
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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
Sub-Adviser Indemnified Person; provided however, that in no case shall
the indemnity in favor of the Sub-Adviser Indemnified Person be deemed
to protect such person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith,
or negligence in the performance of its duties, or by reason of its
reckless disregard of obligations and duties under this Agreement.
(b) Notwithstanding Section 15 of this Agreement, the
Sub-Adviser agrees to indemnify and hold harmless the Manager, any
affiliated person of the Manager, and any 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, under any other statute, at common law or otherwise,
arising out of the Sub-Adviser's responsibilities as Sub-Adviser of the
Series which (1) may be based upon the Sub-Adviser's negligence,
willful misfeasance, or bad faith in the performance of its duties
(which could include a negligent action or a negligent omission to
act), or by reason of the Sub-Adviser's reckless disregard of its
obligations and duties under this Agreement, or (2) may be based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus covering the
shares of the Trust or any Series, or any amendment or supplement
thereto, or the omission or alleged omission to state therein a
material fact known or which should have been known to the Sub-Adviser
and was required to be stated therein or necessary to make the
statements therein not misleading, if such a statement or omission was
made in reliance upon information furnished to the Manager, the Trust,
or any affiliated person of the Manager or Trust by the Sub-Adviser or
any affiliated person of the Sub-Adviser; 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 16 with respect to any claim made against a Sub-Adviser
Indemnified Person unless such Sub-Adviser Indemnified Person shall
have notified the Manager in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claim shall have been served upon such Sub-Adviser Indemnified
Person (or after such Sub-Adviser Indemnified Person shall have
received notice of such service on any designated agent), but failure
to notify the Manager of any such claim shall not relieve the Manager
from any liability which it may have to the Sub-Adviser 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 Sub-Adviser Indemnified
Person, the Manager will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Sub-Adviser
Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Sub-Adviser
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Indemnified Person. If the Manager assumes the defense of any such
action and the selection of counsel by the Manager to represent the
Manager and the Sub-Adviser Indemnified Person would result in a
conflict of interests and therefore, would not, in the reasonable
judgment of the Sub-Adviser Indemnified Person, adequately represent
the interests of the Sub-Adviser Indemnified Person, the 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 Sub-Adviser
Indemnified Person, which counsel shall be satisfactory to the Manager
and to the Sub-Adviser Indemnified Person. The Sub-Adviser Indemnified
Person shall bear the fees and expenses of any additional counsel
retained by it, and the Manager shall not be liable to the Sub-Adviser
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than
reasonable costs of investigation. The Manager shall not have the right
to compromise on or settle the litigation without the prior written
consent of the Sub-Adviser Indemnified Person if the compromise or
settlement results, or may result, in a finding of wrongdoing on the
part of the Sub-Adviser Indemnified Person.
(d) The Sub-Adviser shall not be liable under Paragraph (b) of
this Section 16 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have
notified the Sub-Adviser in writing within a reasonable time after the
summons or other first legal process 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 Sub-Adviser of any such claim shall not relieve the Sub-Adviser
from any liability which it may have to the Manager Indemnified Person
against whom such action is brought except to the extent the
Sub-Adviser is prejudiced by the failure or delay in giving such
notice. In case any such action is brought against the Manager
Indemnified Person, the Sub-Adviser 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 Sub-Adviser
assumes the defense of any such action and the selection of counsel by
the Sub-Adviser to represent both the Sub-Adviser and the 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 Sub-Adviser will, at its own expense, assume
the defense with counsel to the Sub-Adviser and, also at its own
expense, with separate counsel to the Manager Indemnified Person, which
counsel shall be satisfactory to the Sub-Adviser 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
Sub-Adviser 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
Sub-Adviser 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.
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17. DURATION AND TERMINATION.
(a) This Agreement shall become effective on the date first
indicated above, 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 ▇▇▇▇ ▇▇▇) of the Manager or the
Sub-Adviser, and the shareholders of each Series, shall have approved
this Agreement. Unless terminated as provided herein, this Agreement
shall remain in full force and effect until NOVEMBER 30, 2006 and
continue on an annual basis thereafter with respect to each Series
covered by this Agreement; provided that such annual continuance is
specifically approved each year by (i) the Board of Trustees of the
Trust, or by the vote of a majority of the outstanding voting
securities (as defined in the ▇▇▇▇ ▇▇▇) of each Series, and (ii) 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 ▇▇▇▇
▇▇▇) of any such party to this Agreement 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 ▇▇▇▇ ▇▇▇) 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
with respect to any Series covered by this Agreement: (i) by the
Manager at any time, upon sixty (60) days' written notice to the
Sub-Adviser and the Trust, (ii) at any time without payment of any
penalty by the Trust, by 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 Sub-Adviser, or (iii) by the
Sub-Adviser upon three (3) months' written notice unless the Trust or
the Manager requests additional time to find a replacement for the
Sub-Adviser, in which case the Sub-Adviser shall allow the additional
time requested by the Trust or Manager not to exceed three (3)
additional months beyond the initial three-month notice period;
provided, however, that the Sub-Adviser may terminate this Agreement at
any time without penalty, effective upon written notice to the Manager
and the Trust, in the event either the Sub-Adviser (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 Sub-Adviser does not receive
compensation for its services from the Manager or the Trust as required
by the terms of this Agreement.
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 record by the Sub-Adviser, although the Sub-Adviser may, at its
own expense, make and retain a copy of such records. This
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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 9, 10, 13, 14, 15 and 16 of
this Agreement shall remain in effect, as well as any applicable
provision of this Section numbered 17 and, to the extent that only
amounts are owed to the Sub-Adviser as compensation for services
rendered while the Agreement was in effect, Section 6.
(b) NOTICES. Any notice must be in writing and shall be
sufficiently given (1) when delivered in person, (2) when dispatched by
telegram or electronic facsimile transfer (confirmed in writing by
postage prepaid first class air 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.
If to the Trust:
ING Investors Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
If to the Sub-Adviser:
ING Investment Management Advisors ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
PO Box 90470
2509 LL The Hague, The Netherlands
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
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 amendment of this Agreement shall be effective
until approved as required by applicable law.
19. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State
of Arizona, 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, and without regard for the conflicts of laws
principle thereof. The term "affiliate" or "affiliated person" as used
in this Agreement shall mean "affiliated person" as defined in Section
2(a)(3) of the ▇▇▇▇ ▇▇▇.
(b) The Manager and the Sub-Adviser acknowledge that the Trust
enjoys the rights of a third-party beneficiary under this Agreement,
and the Manager acknowledges
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that the Sub-Adviser enjoys the rights of a third party beneficiary
under the Management Agreement.
(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.
(d) To the extent permitted under Section 17 of this Agreement,
this Agreement may only be assigned by any party with the prior written
consent of the other parties.
(e) 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.
(f) Nothing herein shall be construed as constituting the
Sub-Adviser as an agent or co-partner of the Manager, or constituting
the Manager as an agent or co-partner of the Sub-Adviser.
(g) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
ING INVESTMENTS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------
▇▇▇▇ ▇▇▇▇▇
Senior Vice President
ING INVESTMENT MANAGEMENT ADVISORS B.V.
By: Illegible
---------
Name: Illegible
---------
Title: Illegible
---------
By: Illegible
---------
Name: Illegible
---------
Title: Illegible
---------
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SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
SERIES ANNUAL SUB-ADVISER FEE
------ ----------------------
(AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
ING VP Index Plus International Equity Portfolio 0.20%
14