Exhibit 99.B(e)(3)
DISTRIBUTION AGREEMENT
This Distribution Agreement, between ING Investors Trust (the "Trust") and
Directed Services, Inc. ("DSI" or the "Distributor"), is dated as of the 29th
day of April, 2005 (the "Agreement").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"),
securities of which are registered under the Securities Act of 1933, as amended
("1933 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
(the "Shares") in separate portfolios (the "Series"), with each such Series
representing interests in a separate portfolio of securities and other assets;
and
WHEREAS, the Trust currently offers Shares in multiple classes, such
classes together with all other classes subsequently established by the Trust
with respect to which the Trust desires to retain the Distributor to render
services hereunder and with respect to which the Distributor is willing so to do
(each a "Class," collectively the "Classes"); and
WHEREAS, the USA Patriot Act of 2001 and the regulations promulgated
thereunder (collectively, the "USA Patriot Act") imposes anti-money laundering
requirements on financial institutions, including mutual funds; and
WHEREAS, the Trust recognizes the importance of complying with the USA
Patriot Act and the Trust has developed and implemented a written anti-money
laundering policy in conjunction with ING Americas, which incorporates a
customer identification program, that is designed to satisfy the requirements of
the USA Patriot Act (the "Trust's AML Program"); and
WHEREAS, the USA Patriot Act authorizes a mutual fund to delegate to a
service provider, including its transfer agent, the implementation and operation
of aspects of the Trust's AML Program; and
WHEREAS, pursuant to the Trust's AML Program, the Trust relies on DSI, a
broker-dealer and the Trust's principal underwriter, to establish and verify the
identity of its institutional account holder customers, the source of such
customer funds and the nature of the customer's business, and the Trust's Board
of Trustees has determined that it is reasonable to rely on DSI for such
services; and
WHEREAS, the Trust desires to delegate to DSI the implementation and
operation of its customer identification program and DSI desires to accept such
delegation.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT OF THE DISTRIBUTOR. The Trust hereby appoints DSI as
exclusive Distributor of the Shares of the Series on the terms and for the
period set forth in this Agreement,
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and DSI hereby accepts such appointment and agrees to render the services and
undertake the duties set forth herein.
2. DUTIES OF DISTRIBUTOR.
(a) In performing its duties as Distributor, DSI will act in conformity
with the Prospectus of the Trust (the "Prospectus") included in the Trust's
Registration Statement on Form N-1A under the 1933 Act and the 1940 Act, as
filed with the Securities and Exchange Commission and as amended or supplemented
from time to time, and with the instructions and directions of the Board of
Trustees of the Trust, the requirements of the 1933 Act, the 1940 Act, and all
other applicable federal and state laws and regulations.
(b) DSI agrees to hold itself available to receive orders for the purchase
or redemption of the Shares of the Series and will accept or reject such orders
on behalf of the Trust in accordance with the provisions of the Prospectus and
any instructions received from the Trust, and will transmit such orders as are
so accepted to the Trust's transfer agent promptly for processing at the Shares'
net asset value next determined in accordance with the Prospectus and any
instructions received from the Trust.
(c) The Distributor will not use any sales literature which has not been
previously approved by an officer of the Trust.
(d) DSI shall not be obligated to sell any certain number of Shares.
Shares shall be sold without a sales charge. Fees may be paid to DSI in
connection with the sale of some or all Classes of Shares pursuant to SCHEDULE A
hereto.
3. THE TRUST'S AML PROGRAM
(a) DUTIES OF DISTRIBUTOR PURSUANT TO THE TRUST'S AML PROGRAM.
(i) Subject to the terms and conditions set forth in the Agreement,
the Trust hereby delegates to DSI the following functions with respect to the
implementation of new customer accounts and the operation of existing customer
accounts as required by the Trust's AML Program and Section 103.131(b) of
Section 326 of the USA Patriot Act (the "CIP Regulations"):
- Obtaining the following identifying information from each customer, as
applicable: (i) name, (ii) address, and (iii) tax payer identification
number;
- Verifying the identification of each institutional account holder,
through documents or through non-documentary methods, in accordance with
the CIP Regulations, so as to permit a reasonable belief that the true
identity of the customer is known, provided however, that when it is
determined that a prospective institutional account holder is a
subsidiary of ING Groep, N.V., the verification of such entity's
identity will not need to be separately verified other than the
collection of its name, address and tax identification number;
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- Determining, within the time required by law, whether the institutional
account holder appears on any list of known or suspected terrorists or
terrorist agencies issued by a Federal government agency and designated
as such by the Department of Treasury;
- In consultation with the Trust's Money Laundering Reporting Officer
("MLRO") as applicable, determining, in a case in which identity cannot
be verified, what action should be taken with respect to the
institutional account holder and whether a suspicious activity report
should be filed; and
- Creating and retaining records documenting the performance of these
functions as required by the Trust's AML Program.
(ii) DSI agrees to perform such delegated duties subject to and in
accordance with the terms and conditions of the Agreement. DSI has provided a
copy of its anti-money laundering program to the Trust and will provide to the
Trust any material modifications to its anti-money laundering program promptly
after their adoption. With respect to any internal audits of DSI's anti-money
laundering program, DSI agrees to provide a prompt report regarding any
exceptions to its program in connection with the Trust and its institutional
accounts to the Trust's designated MLRO provided such disclosure is permitted by
the information sharing provisions of the USA Patriot Act.
(b) REPRESENTATION. DSI represents that it is subject to NASD Rule 3011
implementing the anti-money laundering compliance program requirements of 31
U.S.C. 5318(h) and is regulated by the U.S. Securities and Exchange Commission,
a federal functional regulator.
(c) CERTIFICATION. In connection with the performance by DSI of the
above-delegated duties, DSI agrees that it shall certify to the Trust, on an
annual basis, that DSI (i) has implemented an anti-money laundering program
reasonably calculated to comply with the USA Patriot Act and other applicable
laws and regulations, and (ii) has performed the functions that it has agreed to
perform in Section 1 above.
(d) CONSENT TO EXAMINATION. In connection with the performance by DSI of
the above-delegated duties, DSI understands and acknowledges that the Trust
remains responsible for ensuring compliance with the USA Patriot Act and that
the records DSI maintains for the Trust relating to the Trust's AML Program may
be subject, from time to time, to examination and/or inspection by federal
regulators in order that the regulators may evaluate such compliance. DSI hereby
consents to such examination and/or inspection and agrees to cooperate with such
federal examiners in connection with their review. For purposes of such
examination and/or inspection, DSI will use its best efforts to make available
during normal business hours, all required records and information concerning
the implementation of the Trust's customer identification program for review by
such examiners.
(e) LIMITATION OF DELEGATION. The Trust acknowledges and agrees that in
accepting the delegation hereunder, DSI is agreeing to perform only those
aspects of the Trust's AML Program relating to the implementation and operation
of customer accounts as specified in Section 1 above that have been expressly
delegated hereby and is not undertaking and shall not
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be responsible for any other aspect of the Trust's AML Program or for the
overall compliance by the Trust with the USA Patriot Act.
4. DISTRIBUTOR'S AGREEMENTS WITH BROKER-DEALERS. DSI is authorized to
enter into agreements with broker-dealers registered as such under the
Securities Exchange Act of 1934 who will solicit applications for sales of
variable insurance products, the proceeds of which will be invested in the
Trust, whereby DSI may permit such broker-dealers, among other things, to
distribute copies of the Prospectus for the Trust under terms and conditions
deemed appropriate by DSI.
5. SALES COMMISSION.
(a) In respect of each Class of Shares:
(i) DSI shall be entitled to receive a sales commission on the sale
of Shares of the Series in the amounts and according to the procedures set forth
in the Series' Prospectus then in effect under the 1933 Act (including any
supplements or amendments thereto).
(ii) In addition to the payments of the sales commissions to you
provided for in paragraph 5(a)(i), DSI also may receive reimbursement for
expenses or a maintenance or a trail fee as may be required by and described in
the distribution plans adopted by the Series pursuant to Rule 12b-1 under the
1940 Act.
(b) DSI may allow appointed sub-agents or dealers such commissions or
discounts (not exceeding the total sales commission) as DSI shall deem
advisable, so long as any such commissions or discounts are set forth in the
Series' then current Prospectus or Statement of Additional Information, to the
extent required by the applicable federal and state securities laws.
6. EXPENSES OF DISTRIBUTOR. During the term of this Agreement, DSI will
bear all its expenses in complying with this Agreement, including the following
expenses:
(a) costs of sales presentations, mailings, advertising, and any other
marketing efforts by DSI in connection with the distribution or sale of the
Shares; and
(b) any compensation paid to employees of DSI in connection with the
distribution or sale of the Shares.
7. EXPENSES OF TRUST. The Trust shall bear all of its other expenses,
including, but not limited to:
(a) preparation and setting in type of its reports, proxies and
prospectuses and printing and distributing reports, proxies and prospectuses and
other communications to existing shareholders;
(b) registration of the Trust's Shares with the Securities and Exchange
Commission and the securities commission of any state if deemed appropriate by
an officer of the Trust; and
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(c) qualification of the Trust's Shares for sale in jurisdictions deemed
appropriate by an officer of the Trust.
8. LIABILITY OF DISTRIBUTOR. DSI shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust in connection
with the matters to which this Agreement relates, except a loss resulting from
its willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
9. AGENT OF TRUST. Any person, even though also an officer, employee or
agent of DSI, who may be or become an officer, trustee, employee or agent of the
Trust shall be deemed, when rendering services to the Trust or acting in any
business of the Trust, to be rendering such services to or acting solely for the
Trust and not as an officer, partner, employee or agent or one under the control
or direction of DSI even though paid by DSI.
10. DURATION AND TERMINATION. This Agreement shall take effect on the date
of its execution and shall continue in effect, unless sooner terminated as
provided herein, until November 30, 2006 and shall continue from year to year
thereafter so long as such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the Board of Trustees
of the Trust who are not parties to this Agreement or "interested persons" (as
defined in the ▇▇▇▇ ▇▇▇) of any such party, cast in person at a meeting called
for the purpose of voting on such approval, and (b) either by a majority of the
entire Board of Trustees of the Trust or by a majority vote (as defined in the
Prospectus) of the shareholders of the Trust; provided, however, that this
Agreement may be terminated without penalty by the Board of Trustees of the
Trust or by a majority vote of the shareholders of the Trust on 60 days' written
notice to DSI; or by DSI at any time, without payment of any penalty, on 60
days' written notice to the Trust. This Agreement will automatically and
immediately terminate in the event of its assignment (as described in the 1940
Act).
11. NOTICES. Notices of any kind shall be in writing and shall be duly
given if (1) mailed, first class postage prepaid, or (2) delivered 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 Distributor:
Directed Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Counsel
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If to the Trust:
ING Investors Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Counsel
12. EXCLUSIVITY. The Distributor shall have exclusive rights under this
Agreement to distribute the Shares of the Series on the terms and for the period
set forth in this Agreement. However, the Trust shall not be deemed to have
exclusive rights to the services of the Distributor under this Agreement, and
the Distributor shall be free to render similar services or other services to
others so long as its services hereunder are not impaired thereby.
13. REPORTS. The Distributor shall prepare reports to the Board of
Trustees of the Trust showing such information as from time to time shall be
reasonably requested by the Board or as are required of the Distributor by
applicable laws and regulations.
14. INDEPENDENT CONTRACTOR. The Distributor shall for all purposes herein
provided be deemed to be an independent contractor and, unless otherwise
expressly provided or authorized, shall have no authority to act for or
represent the Trust in any way or otherwise be deemed an agent of the Trust. It
is understood and agreed that the Distributor, by separate agreement with the
Trust, may also serve the Trust in other capacities.
15. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
(b) This Agreement shall be governed by the laws of the state of Delaware,
provided that nothing herein shall be construed in a manner inconsistent with
the 1940 Act, the Securities Exchange Act of 1934, or any rule or order of the
Securities and Exchange Commission.
(c) 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.
(d) The Amended and Restated Agreement and Declaration of Trust
establishing the Trust (the "Declaration"), a copy of which is on file in the
Office of the Secretary of the Commonwealth of Massachusetts, provides that the
name "ING Investors Trust" refers to the Trustees under the Declaration
collectively as trustees and not as individuals or personally, and that no
shareholder, trustee, officer, employee or agent of the Trust shall be subject
to claims against or obligations of the Trust to any extent whatsoever, but that
the Trust estate only shall be liable.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
DIRECTED SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: SVP
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ING INVESTORS TRUST
By: /s/ ▇▇▇▇▇▇ ▇. Naka
▇▇▇▇▇▇ ▇. Naka
Senior Vice President
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SCHEDULE A
WITH RESPECT TO
ING INVESTORS TRUST
DISTRIBUTION AGREEMENT
Distribution fees in the amount of 0.25% for Service 2 Class shares and 0.50%
for Adviser Class shares based on average net assets may be paid to Directed
Services, Inc. for shares of the following Series of the ING Investors Trust:
SERIES CLASSES
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ING FMR(SM) Earnings Growth Portfolio Service 2, Adviser
ING JPMorgan Value Opportunties Portfolio Service 2, Adviser
ING ▇▇▇▇▇▇▇ International Opportunities Portfolio Service 2, Adviser
ING MFS Utilities Portfolio Service 2, Adviser
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