EXHIBIT (d)(14)
FORM OF
SUB-ADVISORY AGREEMENT
ING MUTUAL FUNDS
AGREEMENT made this ____ day of ___________________ between ING
Investments, LLC, an Arizona limited liability company (the "Manager"), and NWQ
Investment Management Company, LLC, a Delaware limited liability company (the
"Sub-Adviser") (the "Agreement").
WHEREAS, ING Mutual Funds (the "Fund") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
management investment company;
WHEREAS, the Fund is authorized to issue separate series, each
series having its own investment objective or objectives, policies, and
limitations; and
WHEREAS, the Fund may offer shares of additional series in the
future; and
WHEREAS, pursuant to an Investment Management Agreement, dated
______________ (the "Management Agreement"), a copy of which has been provided
to the Sub-Adviser, the Fund has retained the Manager to render advisory and
management services with respect to certain of the Fund'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 Fund, and the
Sub-Adviser is willing to furnish such services to the Fund 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 Fund 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 Fund 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.
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2. Sub-Adviser Duties. Subject to the supervision of the Fund'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 as the Fund's agent and attorney-in-fact
with full power and authority in connection with such assets without prior
consultation with any of the Manager, the Fund or the Fund's Board of Trustees.
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, cash 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' respective
investment objective or objectives, policies, and restrictions as agreed upon by
the Manager and the Sub-Adviser and as set forth in the Fund's Registration
Statement filed with the Securities and Exchange Commission ("SEC"), as amended
to reflect the such agreement by the parties hereto, 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 Fund's Board of
Trustees of which the Sub-Adviser has been sent a copy, and the provisions of
the Registration Statement of the Fund 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. If a procedure applicable to a Series is to be revised, the
Manager will provide reasonable prior notice to the Sub-Adviser of the proposed
revisions, including a copy of the procedure as proposed to be revised.
(b) In carrying out its duties under the Sub-Adviser Agreement, the
Sub-Adviser will comply with the following policies and procedures:
(i) The Sub-Adviser will manage each Series so that it meets the
income and asset diversification requirements of Section 851 of the Internal
Revenue Code.
(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 Manager will be solely responsible for making all required
filings of Form N-PX with the appropriate regulatory bodies.
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The Sub-Adviser will make appropriate personnel reasonably available
for consultation for the purpose of reviewing with representatives of the
Manager and/or the Board any proxy solicited by or with respect to the issuers
of securities in which assets of the Series are invested. Upon request, the
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
not be liable to the Manager, the Fund or any of the Fund's shareholders as a
result of any act, conduct or omission of the Manager in connection with its
voting of proxies associated with securities contained in any 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.
(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 as needed, such confirmation,
trade tickets, and other documents and information, including, but not limited
to, Cusip, Cedel, 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 Fund's custodian and portfolio accounting agent.
(iv) The Sub-Adviser will assist the custodian and portfolio
accounting agent for the Fund in determining or confirming, consistent with the
procedures and policies stated in the Registration Statement for the Fund 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 nor a pricing agent or the
pricing agent for the Fund. The Sub-Adviser shall not be liable for any
valuation determined or adopted by the Fund, the Fund's custodian and/or
portfolio accounting agent, as contemplated in this Agreement, unless such
determination is made based upon information provided by the Sub-Adviser that is
materially incorrect or incomplete as a result of the Sub-Adviser's gross
negligence.
(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.
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(c) 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 Fund 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 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.
(d) The Sub-Adviser will assist the Manager, as reasonably
requested, in its discussions with Morningstar to clarify any style box
conflicts with each Series' style and the anticipated timeframe in which
Morningstar will remedy such conflicts, if any.
(e) The Sub-Adviser will make available to the Fund 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 Fund) as are
necessary to assist the Fund 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 Fund are being conducted in a manner
consistent with applicable laws and regulations.
(f) The Sub-Adviser will provide reports to the Fund'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 Fund'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 factors specified in the
prospectus and/or statement of additional information for the Fund, the price of
the security or other investment (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
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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 Fund, by other aspects of the portfolio
execution services offered. Subject to such policies as the Fund'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 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 overall responsibilities with
respect to the Series and to its other clients as to which it exercises
investment discretion. 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 managed by the Sub-Adviser to an affiliated broker-dealer of either
the Sub-Adviser or the Manager 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 Fund's Board of Trustees indicating the broker-dealers to which
such allocations have been made and the basis therefore.
4. Representations.
(a) The Sub-Adviser agrees and represents that:
(i) the information it has provided for inclusion in the
Post-Effective Amendment to the Registration Statement
for the Fund filed with the SEC regarding the Series,
including the prospectus and statement of additional
information (collectively, "Registration Materials") is
true and does not omit any statement of a material fact
which is 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; and
(ii) the Sub-Adviser has reviewed such information, as
included in the Registration Materials, and, to the
Sub-Adviser's knowledge, with respect to the disclosure
contained in the Registration Materials based upon
information provided by the Sub-Adviser, such disclosure
contains no untrue statement of a material fact and does
not omit any statement of a material fact which is
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.
(b) 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
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Agreement remains in effect. The Sub-Adviser will provide the Manager with a
copy of the Sub-Adviser's Form ADV, Part II, and will promptly provide to the
Manager any updates or revisions to the Sub-Adviser's Form ADV.
(c) The Manager agrees and represents that:
(i) the Manager and representatives of the Fund prepared the
Registration Materials and the Registration Materials
(including the prospectus for each Series) comply in all
material respects with all applicable laws, rules and
regulations in each relevant jurisdiction;
(ii) the Registration Materials (including the prospectus for each
Series) do not contain any untrue statement of a material fact
or omit to state any material fact required by any applicable
law to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading under applicable law; and
(iii) the Manager and the Fund and all of their respective officers,
directors, partners, employees and agents will comply, in all
material respects, with all applicable laws and rules related
to the Manager, the Fund, the offering and sale of shares of
the Series and the business of the Fund and the Sub-Adviser
shall not be liable to the Manager, the Fund or any of the
Fund's shareholders as a result of any act, conduct or
omission of the Manager or its officers, employees, affiliates
or agents.
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 Fund shall be responsible for all the expenses of the Fund's
operations. In addition, if the Fund is required, under applicable law, to
supplement the Registration Materials because of a change requested by the
Sub-Adviser, the Sub-Adviser will reimburse the Fund and/or the Manager for the
cost preparing 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 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 Fund 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 Fund 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 Fund.
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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") prepared for public dissemination, that are produced by
the Sub-Adviser or its affiliates 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. The Manager agrees that the Sub-Adviser may identify the Fund
and each Series on its client list for public distribution.
(b) During the term of this Agreement, the Manager agrees to furnish
the Sub-Adviser at its principal office all Registration Materials (and any
constituent components of the Registration Materials) and any amendments
thereto, proxy statements, reports to shareholders, Marketing Materials or other
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, performance and strategies. Marketing Materials
may be furnished to the Sub-Adviser by first class or overnight mail, facsimile
transmission equipment, electronic delivery or hand delivery.
(c) Neither the Manager nor the Fund, nor any affiliate of either,
will use the registered trademarks, service marks, logos, names or other
proprietary designations of NWQ, its subsidiaries and/or affiliates without
NWQ's prior written approval. The Manager and the Fund will submit to NWQ for
its prior written approval any advertising or promotional material using NWQ's
name or any name associated with an affiliate of NWQ, or any trademarks, service
marks, logos or proprietary designations related to any of the foregoing.
8. Compliance.
(a) The Sub-Adviser shall 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 Fund (1) 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 investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions, or (2) upon having a
reasonable basis for believing that the Series has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code. The Sub-Adviser further agrees to notify the Manager and the Fund
promptly of any material fact
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known to the Sub-Adviser respecting or relating to the Sub-Adviser that is not
contained in the Registration Statement or prospectus for the Fund (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
(1) in the event that the SEC has censured the Manager or the Fund; placed
limitations upon either of their activities, functions, or operations; suspended
or revoked the Manager's registration as an investment adviser or the Fund's
registration under the 1940 Act; or has commenced proceedings or an
investigation against either the Manager or the Fund that may result in any of
these actions, or (2) upon having a reasonable basis for believing that the
Series has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Internal Revenue Code.
9. Books and Records. The Sub-Adviser hereby agrees that all records
which it maintains for the Series are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund'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 provide reasonable cooperation 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 Fund. Subject to the foregoing, the
Sub-Adviser shall treat as confidential all information pertaining to the Fund
and actions of the Fund, the Manager and the Sub-Adviser, and the Manager shall
treat as confidential and use only in connection with the Series all information
pertaining to or furnished by the Sub-Adviser to the Fund or the Manager, 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, the Manager or the Fund, or if available
from a source other than the Manager, Sub-Adviser or this Fund.
11. Exclusivity.
(a) Until the second anniversary of the Effective Date of this
Agreement, the Sub-Adviser agrees that it will not enter into an investment
advisory agreement with respect to any open-end investment company registered
under Section 8 of the 1940 Act, or, alternatively, any portfolio or series
thereof, as the case may be, that (i) has an investment strategy substantially
similar to that of any Series identified at SCHEDULE A to this Agreement; and
(ii) has its shares offered primarily on a retail basis in the United States
through intermediaries (each such investment company, or, alternatively, any
portfolio or series thereof, as the case may be, an, "Excluded Fund"); except
that, during such two year period, Sub-Adviser may enter into an investment
advisory agreement with an Excluded Fund that: (a) is organized and/or offered
by
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Nuveen Investments, Inc. and/or any subsidiary or affiliate thereof ("Nuveen");
and (b) has a gross management fee equal to or higher than the lesser of (x) the
gross management fee of the corresponding Series or (y) 1.00%. For purposes of
the foregoing clause (b), any breakpoint fees attributable to an Excluded Fund
organized and/or offered by Nuveen, whether fund-specific or complex-wide, which
would have the effect of reducing the otherwise stated management fee level,
shall not be taken into account.
(b) For purposes of clarification, the parties to this Agreement
understand and agree that Section 11(a):
(i) shall have no force, effect on or applicability to any fund,
pool of assets, collective investment scheme or any other client to which the
Sub-Adviser provides advisory services as of the Effective Date of this
Agreement;
(ii) shall not be applicable to any client of Sub-Adviser that is
not an Excluded Fund;
(iii) shall not apply to any institutional fund or share class
providing for minimum investments of $250,000 or more;
(iv) shall not apply to the sale of any "R" class of shares
associated with any fund organized and/or offered by Nuveen; and
(v) shall not preclude the Sub-Adviser from managing a "sleeve" of a
fund or any "fund of funds," "manager of managers" or "multi-manager"
arrangement or other collective investment scheme(s); and
(c) The parties to this Agreement agree and understand that this
Section 11 shall immediately have no further force, effect on or applicability
to the parties to this Agreement. Upon the second anniversary of the Effective
Date of this Agreement or, with respect to any Series identified at SCHEDULE A
to this Agreement, if the Agreement is terminated with respect to that Series
prior to the second anniversary of such Effective Date.
12. 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 Fund's shares, as
they may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
13. Control. Notwithstanding any other provision of the Agreement,
it is understood and agreed that day-to-day management of the Series will be
delegated to the Sub-Adviser, subject to the oversight of the Manager and the
Fund's Board of Trustees, which shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to
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this Agreement. The Fund has reserved the right to reasonably direct any action
hereunder taken on its behalf by the Sub-Adviser.
14. 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
(1) shall bear no responsibility and shall not be subject to any liability for
any act or omission respecting any series of the Fund that is not a Series
hereunder, and (2) 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.
15. 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 Fund which (1) may be based upon the
Manager's negligence, willful misfeasance, bad faith or reckless disregard in
the performance of its duties to the Fund (which could include a negligent
action or a negligent omission to act), or by reason of the Manager's breach of
its obligations and duties under this Agreement, or (2) may be based upon any
untrue statement of a material fact contained in the Registration Statement or
prospectus covering shares of the Fund or any Series, or any amendment thereof
or any supplement thereto, or the omission to state therein a material fact
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 Fund 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 14 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 as a result of the Sub-Adviser's negligence, willful misfeasance, bad
faith or reckless disregard in the performance of its duties to the Fund (which
could include a negligent action or a negligent
10
omission to act), or by reason of the Sub-Adviser's breach of its obligations
and duties under this Agreement, or (2) may be based upon any untrue statement
of a material fact contained in the Registration Statement or prospectus
covering the shares of the Fund or any Series, or any amendment or supplement
thereto, or the 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
Fund, or any affiliated person of the Manager or Fund 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 15 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 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 15 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
11
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.
16. Duration and Termination.
(a) This Agreement shall become effective on the date first
indicated above, subject to the condition that the Fund's Board of Trustees,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 0000 Xxx) 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 ________________________ 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 (a) the Board of Trustees of
the Fund, or by the vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of each Series, and (b) the vote of a majority of those
Trustees who are not parties to this Agreement or interested persons (as such
term is defined in the 0000 Xxx) of any such party to this Agreement cast in
person at a meeting called for the purpose of voting on such approval. However,
any approval of this Agreement by the holders of a majority of the outstanding
shares (as defined in the 0000 Xxx) of a Series shall be effective to continue
this Agreement with respect to such Series notwithstanding (i) that this
Agreement has not been approved by the holders of a majority of the outstanding
shares of any other Series or (ii) that this agreement has not been approved by
the vote of a majority of the outstanding shares of the Fund, 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: (a) by the Manager at any time, upon sixty
(60) days' written notice to the Sub-Adviser and the Fund, (b) at any time
without payment of any penalty by the Fund, by the Fund'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-
12
Adviser, or (c) by the Sub-Adviser upon ninety (90) days' written notice unless
the Fund 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 Fund or Manager not to exceed thirty (30) additional days
beyond the initial ninety-day notice period; provided, however, that the
Sub-Adviser may terminate this Agreement at any time without penalty, with
respect to any Series immediately, effective upon written notice to the Manager
and the Fund, 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 under applicable law or pursuant to its respective contract with the
Fund; (b) the Manager becomes bankrupt or otherwise incapable of carrying out
its obligations under this Agreement or the Management Agreement; and/or (c) the
Sub-Adviser does not receive compensation for its services from the Manager or
the Fund 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 Fund, 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 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, 12, 13, 14 and 15 of this
Agreement shall remain in effect, as well as any applicable provision of this
Section numbered 16 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 Fund:
ING Mutual Funds
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
If to the Manager:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
13
If to the Sub-Adviser:
NWQ Investment Management Company, LLC
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
17. Amendments. No provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and no amendment of this Agreement shall be effective
until approved as required by applicable law.
18. 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 0000 Xxx.
(b) The Manager and the Sub-Adviser acknowledge that the Fund enjoys
the rights of a third-party beneficiary under this Agreement, and the Manager
acknowledges 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 16 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) Except as otherwise contemplated in this Agreement, 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.
14
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:__________________________
Xxxxxxx X. Xxxxxx
Executive Vice President
NWQ INVESTMENT MANAGEMENT COMPANY, LLC
By:__________________________
__________________________
Title
15
SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
NWQ INVESTMENT MANAGEMENT COMPANY, LLC
SERIES ANNUAL SUB-ADVISER FEE
------ ----------------------
(AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
ING Global Value Advantage Fund 0.40% on the value of the net assets of the Series
equal to the amount transitioned to the Sub-
Adviser's management pursuant to this Agreement
(the "Transitioned Amount");
0.60% computed on aggregate net assets in excess
of the Transitioned Amount.
ING International Value Advantage Fund 0.50% on the initial $300 million;
0.55% thereafter at any aggregate asset level.
16
