Exhibit 99.B(d)(2)(C)
FORM OF
AMENDED AND RESTATED PORTFOLIO MANAGEMENT AGREEMENT
AGREEMENT made the 10th day of August, 1998, as amended and restated on
_____________, among ING Investors Trust (the "Trust"), a Massachusetts business
trust, Directed Services, Inc. (the "Manager"), a New York corporation, and
Massachusetts Financial Services Company ("Portfolio Manager"), a Delaware
corporation.
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 two Management Agreements between The GCG Trust and
Directed Services, Inc., effective as of October 24, 1997, and subsequently
amended, and May 2, 2005, (the "Management Agreements") copies of which have
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; and
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 Massachusetts
Financial Services Company 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. 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. 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. Subject to
Section 8(a) hereof, 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. Subject to Section
8(a) hereof, 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 within the scope of
this Agreement 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 within the scope of
this Agreement 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 within the scope of this Agreement 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;
provided however, that the Portfolio Manager shall not be so obligated
unless the Manager has provided copies of such rules and regulations to the
Portfolio Manager. 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.
(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 securities 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
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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, subject to
review by the Manager and the Board of Trustees.
(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 market
quotations are not readily available, and the parties agree that the
Portfolio Manager shall not bear responsibility or liability for the
determination or accuracy of the valuation of such portfolio securities and
assets of the Series except to the extent that the Portfolio Manager
exercises judgment with respect to any such valuation, and then only in
accordance with its standard of care as set forth in this Agreement.
(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 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.
(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
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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 as agreed to by the Portfolio Manager.
(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 ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code, or involving the purchase or sale of any security; or
(ii) 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.
3. BROKER-DEALER SELECTION. The Portfolio Manager is hereby authorized to
place orders for the purchase and sale of securities 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 a security transaction will be to obtain the
best execution for the Series, taking into account the factors specified in the
prospectus and/or statement of additional information for the Trust, which
include price (including the applicable brokerage commission or dollar spread),
the size of the order, the nature of the market for the security, the timing of
the transaction, the reputation, 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
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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 to 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 would have
charged for effecting that transaction, if the Portfolio Manager or its
affiliate 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 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 of Trustees of the Trust
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. The
Portfolio Manager will provide the Manager with a copy of the Portfolio
Manager's Form ADV, Part II at the time the Form ADV and any amendment is filed
with the SEC, and a copy of its written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act, together with evidence of its
adoption.
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;
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(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, 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;
(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 15 of this Agreement), and the legal obligations of the Trust to
indemnify its Trustees, officers, employees, shareholders, distributors,
and agents with respect thereto; and
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(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 Trust and the Manager acknowledge that the Portfolio Manager
is not the compliance agent for any Series or for the Trust or the Manager,
and does not have access to all of each Series' books and records necessary
to perform certain compliance testing. To the extent that the Portfolio
Manager has agreed to perform the services specified in Section 2 in
accordance with the Trust's registration statement, the Trust's Agreement
and Declaration of Trust and By-Laws, the Trust's Prospectus and any
policies adopted by the Trust's Board of Trustees applicable to the Series
(collectively, the "Charter Requirements"), and in accordance with
applicable law (including Sub-chapters M and L of the Code, the Investment
Company Act and the Advisers Act ("Applicable Law")), the Portfolio Manager
shall perform such services based upon its books and records with respect
to each Series, which comprise a portion of each Series' books and records,
and upon information and written instructions received from the Trust, the
Manager or the Trust's administrator, and shall not be held responsible
under this Agreement so long as it performs such services in accordance
with this Agreement, the Charter Requirements and Applicable Law based upon
such books and records and such information and instructions provided by
the Trust, the Manager, or the Trust's administrator. The Manager shall
promptly provide the Portfolio Manager with copies of the Trust's
registration statement, the Trust's Agreement and Declaration of Trust and
By-Laws, the Trust's currently effective Prospectus and any written
policies and procedures adopted by the Trust's Board of Trustees applicable
to the Portfolio and any amendments or revisions thereto.
(b) The Portfolio Manager agrees that it shall promptly notify the
Manager and the Trust (1) 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 (2) 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 the
description of the Portfolio Manager that is not contained in the
Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto, 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.
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(c) The Manager agrees that it shall immediately notify the Portfolio
Manager (1) 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 (2) 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.
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; provided however that this agreement to
cooperate does not apply where the party does not reasonably believe the
government authority has authority to request the information or the information
is privileged or confidential.
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, Massachusetts Financial Services Company or any of its
affiliates (other than the Manager), or that use any derivative of the name
Massachusetts Financial Services Company 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. 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
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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.
12. 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 reserve the right to direct, approve, or disapprove any action
hereunder taken on its behalf by the Portfolio Manager.
13. SERVICES NOT EXCLUSIVE. It is understood that the services of the
Portfolio Manager are not exclusive, and nothing in this Agreement shall prevent
the Portfolio Manager (or its affiliates) from providing similar services to
other clients, including investment companies (whether or not their investment
objectives and policies are similar to those of the Series) or from engaging in
other activities.
14. 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.
15. 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, 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
Portfolio Manager's duties, or by reason of reckless disregard by Portfolio
Manager of its obligations and duties under this Agreement.
16. INDEMNIFICATION.
(a) Notwithstanding Section 15 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
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the 1933 Act, the 1940 Act, the Advisers Act, the Internal Revenue 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 the
willful misfeasance, bad faith or negligence of 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; (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 15 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 Internal Revenue 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 the willful misfeasance, bad faith or negligence of 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
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 a 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 Portfolio Manager and was required to
be stated therein or necessary to make the statements therein not
misleading, if such a statement or omission relate to the description of
the Portfolio Manager; 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 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
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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 16. 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 of Manager's choice. 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 Person, with counsel of Manager's choice. 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 16 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 16. 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
of Portfolio Manager's choice. 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 with counsel of
11
Portfolio Manager's choice. 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.
17. 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) 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
12
Sections or Paragraphs numbered 2(f), 9, 10, 11, 15, 16, and 19 of this
Agreement shall remain in effect, as well as any applicable provision of this
Paragraph numbered 17.
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 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 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.
19. 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 "Massachusetts Financial Services
Company" 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).
20. 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.
21. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts, provided that nothing herein shall be construed in a
manner inconsistent with the 1940 Act, the 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 1940 Act.
13
(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 17 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.
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
Attest By:
------------------------------- ---------------------------------
Title: Title:
------------------------------- ------------------------------
DIRECTED SERVICES, INC.
Attest By:
------------------------------- ---------------------------------
Title: Title:
------------------------------- ------------------------------
MASSACHUSETTS FINANCIAL SERVICES
COMPANY
Attest By:
------------------------------- ---------------------------------
Title: Title:
------------------------------- ------------------------------
14
FORM OF
SCHEDULE A
COMPENSATION FOR SERVICES TO SERIES
For the services provided by Massachusetts Financial Services Company
("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
combined average daily net assets of the applicable Series of the Trust and the
assets of the portfolios of ING Partners, Inc. (formerly Portfolio Partners,
Inc.), an affiliated fund group of the Trust that are also managed by the
Portfolio Manager at the following annual rates:
SERIES RATE
------ ----
ING MFS Mid Cap Growth Portfolio, 0.35% on first $500 million;
ING MFS Total Return Portfolio and 0.30% on next $1 billion; and
ING MFS Utilities Portfolio of ING Investors Trust; 0.25% thereafter
and ING MFS Capital Opportunities Portfolio
of ING Partners, Inc.
15