Exhibit (D)(5)
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
AGREEMENT made the 5th day of December, 2002, is hereby amended and
restated this 7th day of December, 2005 between ING Investments, LLC, an Arizona
limited liability company (the "Manager"), and ING Investment Management
Advisors B.V., an indirect wholly owned subsidiary of ING Groep N.V., domiciled
in The Hague, The Netherlands (the "Sub-Adviser") (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; and
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 two Investment Management Agreements, dated September
23, 2002, as amended, and February 1, 2005 (the "Management Agreements"), copies
of which have 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
Agreements, 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; and
WHEREAS, the Board of Trustees has authorized the Manager to enter into an
Agreement with the Sub-Adviser.
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 the Series' portfolio and determine in its discretion the
composition of the assets of the Series' portfolio, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
contained in the portfolio. The Sub-Adviser will provide investment research and
conduct a continuous program of evaluation, investment, sales, and reinvestment
of the Series' assets by determining the securities and other investments that
shall be purchased, entered into, sold, closed, or exchanged for the Series,
when these transactions should be executed, and what portion of the assets of
the Series should be held in the various securities and other investments in
which it may invest. From time to time, at the request of the Manager, the
Sub-adviser will cooperate with and assist a Transition Manager, hired by the
Manager, when the Series' portfolio is part of a larger transition of assets,
provided that the Sub-Adviser will continue to have full discretion with respect
to the Series investment portfolio. To the extent permitted by the investment
policies of the 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. At the
request of the Manager, the Sub-Adviser will participate in standing
instructions giving the Funds' custodian authority to administer daily foreign
currency exchange transactions.
The Sub-Adviser will provide the services under this Agreement in
accordance with the Series' investment objective or objectives, policies, and
restrictions as stated in the Fund's Registration Statement filed with the
Securities and Exchange Commission ("the SEC"), as amended, copies of which
shall be sent to the Sub-Adviser by the Manager prior to the commencement of
this Agreement and promptly following any such amendment. The Sub-Adviser
further agrees as follows:
(a) The Sub-Adviser will conform with the 1940 Act and all rules and
regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Fund's Board of
Trustees of which the Sub-Adviser has been sent a copy, and which apply to the
duties of the Sub-Adviser, 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. In carrying out its duties under this Agreement, the
Sub-Adviser will comply with the following policies and procedures:
(i) The Sub-Adviser will manage the 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.
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The Sub-Adviser will make appropriate personnel available for consultation
for the purpose of reviewing with representatives of the Manager and/or the
Board any proxy solicited by or with respect to the issuers of securities in
which assets of the Series are invested. Upon request, the Sub-Adviser will
submit a written voting recommendation to the Manager for such proxies. In
making such recommendations, the Sub-Adviser shall use its good faith judgment
to act in the best interests of the Series. The Sub-Adviser shall disclose to
the best of its knowledge any conflict of interest with the issuers of
securities that are the subject of such recommendation including whether such
issuers are clients or are being solicited as clients of the Sub-Adviser or of
its affiliates.
(iii) In connection with the purchase and sale of securities for the
Series, the Sub-Adviser will arrange for the timely transmission, as determined
by the portfolio accounting agent to enable the agent to accurately calculate
the Series' daily net asset value, 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 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 administrator for the Fund in
reviewing, determining or confirming (including, if necessary, obtaining
broker-quoted prices), 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
administrator seeks assistance from or identifies for review by the Sub-Adviser.
The parties acknowledge that the Sub-Adviser is not a custodian of the Series'
assets and will not take possession or custody of such assets.
(v) The Sub-Adviser will provide the Manager, no later than the 20th day
following the end of each of the first three fiscal quarters of the Series and
the 15th day following the end of the Series' 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, a certified compliance acknowledgement report and the
group of reports listed below in a form provided by the Manager for each month
by the 10th business day of the following month:
1) Report on Brokerage Commissions and Soft Dollar Usage.
2) Trade Compliance reporting pertaining to Rules 17a-7, 17e-1,
10f-3 under the 1940 Act.
3) Report on Illiquid and Restricted Securities held in each
portfolio.
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4) Reports required on Issuers Credit Ratings applicable to Rule
2a-7 under the 1940 Act.
(vii) The parties agree that in the event that the Manager or an affiliated
person of the Manager sends sales literature or other promotional material to
the Sub-Adviser for its approval and the Sub-Adviser has not commented within 10
business days, the Manager and its affiliated persons may use and distribute
such sales literature or other promotional material.
(b) The Sub-Adviser will make available to the Fund and the Manager,
promptly upon request, the Series' investment books and records maintained by
the Sub-Adviser (which shall not include the books and records 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 over the Fund, the Manager or the Sub-Adviser any
information or reports not readily available at the custodian or the portfolio
accounting agent in connection with the services provided hereunder 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.
(c) The Sub-Adviser will provide reports to the Manager for the Fund's
Board of Trustees for consideration at meetings of the Board on the investment
program for the Series and the issuers and securities represented in the Series'
portfolio, and will furnish the Fund's Board of Trustees with respect to the
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 the Series' portfolio,
broker-dealer selection, and negotiation of brokerage commission rates in
effecting a security transaction. The Sub-Adviser's primary consideration in
effecting a security transaction will be to obtain the best execution for the
Series, taking into account the factors specified in the prospectus and/or
statement of additional information for the Fund, which include price (including
the applicable brokerage commission or dollar spread), the size of the order,
the nature of the market for the security, the timing of the transaction, the
reputation, the experience and financial stability of the broker-dealer
involved, the quality of the service, the difficulty of execution, and the
execution capabilities and operational facilities of the firm involved, and the
firm's risk in positioning a block of securities. Accordingly, the price to a
Series in any transaction may be less favorable than that available from another
broker-dealer if the difference is reasonably justified, in the judgment of the
Sub-Adviser in the exercise of its fiduciary obligations to the 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
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relation to the value of the brokerage and research services provided by such
broker-dealer, viewed in terms of either that particular transaction or the
Sub-Adviser's or the Manager's overall responsibilities with respect to the
Series and to their respective other clients as to which they exercise
investment discretion. The Sub-Adviser will consult with the Manager to the end
that portfolio transactions on behalf of a Series are directed to broker-dealers
that participate in commission recapture programs benefiting the Fund, provided
that neither the Sub-Adviser nor the Manager will direct brokerage in
recognition of the sale of Fund shares. To the extent consistent with these
standards, the Sub-Adviser is further authorized to allocate the orders placed
by it on behalf of a Series to the Sub-Adviser if it is registered as a
broker-dealer with the SEC, to an affiliated broker-dealer, or to such brokers
and dealers who also provide research or statistical material, or other services
to the Series, the Sub-Adviser, or an affiliate of the Sub-Adviser. Such
allocation shall be in such amounts and proportions as the Sub-Adviser shall
determine consistent with the above standards, and the Sub-Adviser will report
on said allocation monthly to the Fund's Board of Trustees indicating the
broker-dealers to which such allocations have been made and the basis therefor.
4. Disclosure about Sub-Adviser. The Sub-Adviser has reviewed the most
recent Post-Effective Amendment to the Registration Statement for the Fund filed
with the SEC that contains disclosure about the Sub-Adviser, and represents and
warrants that, with respect to the disclosure about the Sub-Adviser or
information relating, directly or indirectly, to the Sub-Adviser, such
Registration Statement contains, as of the date hereof, no untrue statement of
any material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will maintain such
registration so long as this Agreement remains in effect. The Sub-Adviser will
provide the Manager with a copy of the Sub-Adviser's Form ADV, Part II annually
or upon a material change or update.
5. Expenses. During the term of this Agreement, the Sub-Adviser will pay
all expenses incurred by it and its staff for their activities in connection
with its portfolio management duties under this Agreement, including, but not
limited to, reimbursement of losses due to trade errors or compliance breaches.
The Manager or the Fund shall be responsible for all the expenses of the Fund's
operations.
6. Compensation. For the services provided to the 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
Agreements, 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 Agreements 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 Agreements and the Manager will take all steps appropriate under the
circumstances to collect the amount due from the Fund.
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7. Compliance.
(a) The Sub-Adviser agrees to use reasonable compliance techniques and
policies and procedures reasonably designed to prevent violations of the federal
securities laws 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 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 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.
8. Books and Records. The Fund and the Manager, or an investment adviser
designated by the Manager, shall have access at all reasonable times and on
reasonable notice to all records maintained by the Sub-Adviser. The Sub-Adviser
agrees that it will surrender copies of any such records to the Funds promptly
upon such Fund's request provided that the Sub-Adviser shall keep the originals
of such records to the extent necessary for the Sub-Adviser to comply with
applicable laws, including Rule 31a-3 under the 1940 Act. The Sub-Adviser
further agrees to preserve such records for such time periods as may be
prescribed by Rule 31a-2 under the 1940 Act, provided that before disposing of
any such records, Sub-Adviser will advise the Adviser and deliver the same to
Manager if so requested.
9. Cooperation; Confidentiality. Each party to this Agreement agrees to
cooperate with the other party and with all appropriate governmental authorities
having the requisite jurisdiction (including, but not limited to, the SEC) in
connection with any investigation or inquiry relating to this Agreement or the
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 furnished to the Fund or the Manager
by the Sub-Adviser, in connection with its duties under the agreement except
that the aforesaid information need not be treated as confidential if required
to be disclosed under applicable law, if generally available to
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the public through means other than by disclosure by the Sub-Adviser or the
Manager, or if available from a source other than the Manager, Sub-Adviser or
this Fund.
10. Non-Exclusivity. The services of the Sub-Adviser to the Series and the
Fund are not to be deemed to be exclusive, and the Sub-Adviser shall be free to
render investment advisory or other services to others (including other
investment companies) and to engage in other activities.
11. Prohibited Conduct. The Sub-Adviser may not consult with any other
sub-adviser of the Fund concerning transactions in securities or other assets
for any investment portfolio of the Fund, including the Series, except that such
consultations are permitted between the current and successor sub-advisers of
the Series in order to effect an orderly transition of sub-advisory duties so
long as such consultations are not concerning transactions prohibited by Section
17(a) of the 1940 Act.
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 the Fund shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement and has reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
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, (2) shall bear no responsibility and shall not be subject to
liability for the accuracy of any information provided to the Sub-Adviser by
another entity and shall incur no liability in relying on such information, and
(3) shall not be liable for, or be 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 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
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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,
or bad faith in the performance of its duties (which could include a negligent
action or a negligent omission to act), or by reason of the Manager's reckless
disregard of its obligations and duties under this Agreement, or (2) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus covering shares of the
Fund or any Series, or any amendment thereof or any supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make 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 Fund, the Manager, any affiliated person of the
Manager, and any controlling person of the Manager (and Fund and all of such
persons being referred to as "Manager Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal and other
expenses) to which a Manager Indemnified Person may become subject under the
1933 Act, 1940 Act, the Advisers Act, under any other statute, at common law or
otherwise, arising out of the Sub-Adviser's responsibilities as Sub-Adviser of
the Series which (1) may be based upon the Sub-Adviser's negligence, willful
misfeasance, or bad faith in the performance of its duties (which could include
a negligent action or a negligent omission to act), or by reason of the
Sub-Adviser's reckless disregard of its obligations and duties under this
Agreement, or (2) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
prospectus covering the shares of the Fund or any Series, or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact known or which should have been known to the Sub-Adviser and was
required to be stated therein or necessary to make the statements therein not
misleading, if such a statement or omission was made in reliance upon
information furnished to the Manager, the 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
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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) 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 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
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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, shall have approved
this Agreement. Unless terminated as provided herein, this Agreement shall
remain in full force and effect until NOVEMBER 30, 2007, and continue on an
annual basis thereafter with respect to the Series covered by this Agreement;
provided that such annual continuance is specifically approved each year by (1)
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
(2) 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
the Series shall be effective to continue this Agreement with respect to the
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 one or more of the 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
the Series, upon sixty (60) days' written notice to the Manager and the
Sub-Adviser, or (c) by the Sub-Adviser upon three (3) months' 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 three (3) additional months
beyond the initial three-month notice period; provided, however, that the
Sub-Adviser may terminate this Agreement at any time without penalty, effective
upon written notice to the Manager and the 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 pursuant to its respective contract
with the Fund, or in the event the Manager becomes bankrupt or otherwise
incapable of carrying out its obligations under this Agreement, or ceases to be
a wholly owned subsidiary of ING Groep N.V., or in the event that the
Sub-Adviser does not receive compensation for its services from the Manager or
the Fund as required by the terms of this Agreement.
-10-
Upon termination for any reason, the Sub-Adviser shall forthwith deliver to
the Fund all original written records of the Fund where possible and copies of
said records if originals are not available. 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 8,
9, 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.
Except as otherwise provided, any notice given hereunder shall be in
writing and shall be given by facsimile or other means of electronic
communication or by delivery as hereafter provided. Any notice if sent by means
of electronic communication shall be deemed to have been received upon express
acknowledgement, and notice delivered by hand or sent by internationally
recognized overnight courier service shall be deemed to have been received at
the time of delivery to the applicable address set forth below or at such other
address as a 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: Xxxxxxx X. Xxxxxx
If to the Sub-Adviser:
ING Investment Management Advisors B.V.
Xxxxxxx Xxxxxxxxxxx 00
Xxx Xxxxx, Xxx Xxxxxxxxxxx
Attention: Xxxx Xxxxxxx
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. If shareholder approval of an amendment is required under
the 1940 Act, no such amendment shall become effective until approved by a vote
of the majority of the outstanding shares of the Fund.
-11-
Otherwise, a written amendment of this Agreement is effective upon the approval
of the Board of Trustees and the Sub-Adviser.
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 Agreements.
(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) This Agreement may be assigned by any party only with the prior written
consent of the other parties.
(e) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby, and to this extent, the provisions of this
Agreement shall be deemed to be severable.
(f) Nothing herein shall be construed as constituting the Sub-Adviser as an
agent or co-partner of the Manager, or constituting the Manager as an agent or
co-partner of the Sub-Adviser.
(g) This agreement may be executed in counterparts.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ING INVESTMENTS, LLC
By: /s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
Senior Vice President
ING INVESTMENT MANAGEMENT ADVISORS B.V.
By: /s/ Bas Xxxxxx
------------------------------------
Name: Bas Xxxxxx
Title: Head of Structured Products
By: /s/ Obbe Kok
------------------------------------
Name: Obbe Kok
Title: Head of Institutional Clients
-13-
SCHEDULE A
TO THE
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
SERIES ANNUAL SUB-ADVISER FEE
------ ---------------------------------------------
(AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
ING Emerging Markets Fixed Income Fund 0.35% on the first $250 million;
0.30% on the next $250 million; and
0.25% thereafter
ING Global Equity Dividend Fund 0.20%
ING Index Plus International Equity Fund 0.20%
ING Russia Fund 0.60%
-14-
