SUB-ADVISORY AGREEMENT
Exhibit
77(e)(8)
AGREEMENT dated September 29,
2009, between Directed Services LLC, a Delaware limited liability company (the
“Manager”), and Artio Global Management LLC, a Delaware limited liability
company (the “Sub-Adviser”).
WHEREAS, ING Investors Trust
(“the Trust”) is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”) as an open-end, management investment company; and
WHEREAS, the Trust is
authorized to issue separate series, each series having its own investment
objective or objectives, policies, and limitations; and
WHEREAS, the Trust may offer
shares of additional series in the future; and
WHEREAS, pursuant to an
Amended and Restated Management Agreement
(the
“Management Agreement”) effective as of October 24, 1997, a copy of which has
been provided to the Sub-Adviser, the Trust has retained the Manager to render
advisory, management, and administrative services with respect to the Trust’s
series; and
WHEREAS, pursuant to authority
granted to the Manager in the Management Agreement, the Manager wishes to retain
the Sub-Adviser to furnish investment advisory services to one or more of the
series of the Trust, and the Sub-Adviser is willing to furnish such services to
the Trust and the Manager.
NOW, THEREFORE, in
consideration of the premises and the promises and mutual covenants herein
contained, it is agreed between the Manager and the Sub-Adviser as
follows:
1. Appointment. The
Manager hereby appoints the Sub-Adviser to act as the investment adviser and
manager to the series of the Trust set forth on Schedule
A hereto (the “Series”), as such schedule may be amended from time to
time, for the periods and on the terms set forth in this
Agreement. The Sub-Adviser accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein
provided.
In
the event the Trust designates one or more series (other than the Series) with
respect to which the Manager wishes to retain the Sub-Adviser to render
investment advisory services hereunder, it shall notify the Sub-Adviser in
writing. If the Sub-Adviser is willing to render such services, it
shall notify the Manager in writing, whereupon such series shall become a Series
hereunder, and be subject to this Agreement.
2. Sub-Adviser
Duties. Subject to the supervision of the Trust’s Board of
Trustees and the Manager, the Sub-Adviser will provide a continuous investment
program for each Series’ portfolio and determine in its discretion the
composition of the assets of each Series’ portfolio, including determination of
the purchase, retention, or sale of the securities, cash, and other investments
contained in the portfolio. The Sub-Adviser will conduct investment
research as well as a
continuous
program of evaluation, investment, sales, and reinvestment of each Series’
assets by determining the securities and other investments that shall be
purchased, entered into, sold, closed, or exchanged for the Series, when these
transactions should be executed, and what portion of the assets of the Series
should be held in the various securities and other investments in which it may
invest. To the extent permitted by the investment policies of each
Series, the Sub-Adviser shall make decisions for the Series as to foreign
currency matters and make determinations as to and execute and perform foreign
currency exchange contracts on behalf of the Series. The Sub-Adviser
will provide the services under this Agreement in accordance with each Series’
investment objective or objectives, policies, and restrictions as stated in the
Trust’s Registration Statement filed with the U.S. Securities and Exchange
Commission (“SEC”), as amended, copies of which shall be sent to the Sub-Adviser
by the Manager prior to the commencement of this Agreement and promptly
following any such amendment. The Sub-Adviser further agrees as
follows:
(a) The
Sub-Adviser will conform with the 1940 Act and all rules and regulations
thereunder, all other applicable federal and state laws and regulations, with
any applicable procedures adopted by the Trust’s Board of Trustees of which the
Sub-Adviser has been sent a copy, and the provisions of the Registration
Statement of the Trust filed under the Securities Act of 1933 (the “1933 Act”)
and the 1940 Act, as supplemented or amended, of which the Sub-Adviser has
received a copy, and with the Manager’s portfolio manager operating policies and
procedures as in effect on the date hereof, as such policies and procedures may
be revised or amended by the Manager and agreed to by the
Sub-Adviser. In carrying out its duties under the Sub-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
Sub-Adviser will make appropriate personnel available for consultation for the
purpose of reviewing with representatives of the Manager and/or the Trust’s
Board of Trustees 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.
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(iii) In
connection with the purchase and sale of securities for each Series, the
Sub-Adviser will arrange for the transmission to the custodian and portfolio
accounting agent for the Series on a daily basis, such confirmation, trade
tickets, and other documents and information, including, but not limited to,
Cusip, 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 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 Series’ custodian and portfolio accounting agent.
(iv) The
Sub-Adviser will assist the custodian and portfolio accounting agent for the
Series in determining or confirming, consistent with the procedures and policies
stated in the Registration Statement for the Trust or adopted by the Board of
Trustees, the value of any portfolio securities or other assets of the Series
for which the custodian and portfolio accounting agent seeks assistance from or
identifies for review by the Sub-Adviser. The parties acknowledge
that the Sub-Adviser is not a custodian of the Series’ assets and will not take
possession or custody of such assets.
(v) The
Sub-Adviser will provide the Manager, no later than the 20th day following the
end of each of the first three fiscal quarters of each Series and the 45th day
following the end of each 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 in a form provided by the Manager for each month by the 10th day of
the following month.
(b)
The Sub-Adviser will complete and deliver to the Manager by the 10th day of each
month a written report on each Series 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 the Series’ portfolio and the impact of key portfolio
holdings and sector concentrations on the Series; and
(iii) confirmation
of the Series’ current investment objective and Sub-Adviser’s
projected plan to realize the Fund’s investment objectives.
(c) At
the Managers request Sub-Adviser will contact Morningstar to clarify any style
box conflicts with the Series’ style and the anticipated timeframe in which
Morningstar will remedy such conflicts, if any.
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(d) The
Sub-Adviser will make available to the Trust and the Manager, promptly upon
request, any of the Series’ investment records and ledgers maintained by the
Sub-Adviser (which shall not include the records and ledgers maintained by the
custodian or portfolio accounting agent for the Series) as are necessary to
assist the Series 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 Series are being conducted in a
manner consistent with applicable laws and regulations.
(e) The
Sub-Adviser will provide reports to the Trust’s Board of Trustees for
consideration at meetings of the Board of Trustees on the investment program for
each Series and the issuers and securities represented in each Series’
portfolio, and will furnish the Trust’s Board of Trustees with respect to each
Series such periodic and special reports as the Trustees and the Manager may
reasonably request.
3. Broker-Dealer
Selection. The Sub-Adviser is authorized to make decisions to
buy and sell securities and other investments for each Series’ portfolio,
broker-dealer selection, and negotiation of brokerage commission rates in
effecting a security transaction. The Sub-Adviser’s primary
consideration in effecting a security transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
prospectus and/or statement of additional information for the Trust, and
determined in consultation with the Manager, which include price (including the
applicable brokerage commission or dollar spread), the size of the order, the
nature of the market for the security, the timing of the transaction, the
reputation, the experience and financial stability of the broker-dealer
involved, the quality of the service, the difficulty of execution, and the
execution capabilities and operational facilities of the firm involved, and the
firm’s risk in positioning a block of securities. Accordingly, the
price to a Series in any transaction may be less favorable than that available
from another broker-dealer if the difference is reasonably justified, in the
judgment of the Sub-Adviser in the exercise of its fiduciary obligations to the
Trust, on behalf of a Series, by other aspects of the portfolio execution
services offered. Subject to such policies as the Trust’s Board of
Trustees or Manager may determine and consistent with Section 28(e) of the
Securities Exchange Act of 1934, the Sub-Adviser shall not be deemed to have
acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused a Series to pay a broker-dealer
for effecting a portfolio investment transaction in excess of the amount of
commission another broker-dealer would have charged for effecting that
transaction, if the Sub-Adviser determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer, viewed in terms of either that
particular transaction or the Sub-Adviser’s or the Manager’s overall
responsibilities with respect to the Series and to their respective other
clients as to which they exercise investment discretion. The
Sub-Adviser will consult with the Manager to the end that portfolio transactions
on behalf of a Series are directed to broker-dealers on the basis of criteria
reasonably considered appropriate by the Manager. To the extent
consistent with these standards, the Sub-Adviser is further authorized to
allocate the orders placed by it on behalf of a Series to the Sub-Adviser if it
is registered as a broker-dealer with the SEC, to an affiliated broker-dealer,
or to such brokers and dealers who also provide research or statistical
material, or other services to the Series, the Sub-Adviser, or an affiliate of
the Sub-Adviser. Such allocation shall be in such amounts and
proportions as the Sub-Adviser shall determine consistent with the above
standards, and the Sub-Adviser will report on said allocation regularly to the
Trust’s Board of Trustees indicating the broker-dealers to which such
allocations have been made and the basis therefor.
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4. Disclosure about
Sub-Adviser. The Sub-Adviser has reviewed the most recent
Post-Effective Amendment to the Registration Statement for the Trust filed with
the SEC that contains disclosure about the Sub-Adviser, and represents and
warrants that, with respect to the disclosure about the Sub-Adviser or
information relating, directly or indirectly, to the Sub-Adviser, such
Registration Statement contains, as of the date hereof, no untrue statement of
any material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it
is a duly registered investment adviser under the Advisers Act and will maintain
such registration so long as this Agreement remains in effect. The
Sub-Adviser will provide the Manager with a copy of the Sub-Adviser’s Form ADV,
Part II at the time the Form ADV is filed with the SEC.
5. Expenses. During
the term of this Agreement, the Sub-Adviser will pay all expenses incurred by it
and its staff and for their activities in connection with its portfolio
management duties under this Agreement. The Manager or the Trust
shall be responsible for all the expenses of the Series’
operations.
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
Trust fails to pay the Manager all or a portion of the management fee under said
Management Agreement when due, and the amount that was paid is insufficient to
cover the Sub-Adviser’s fee under this Agreement for the period in question,
then the Sub-Adviser may enforce against the Trust any rights it may have as a
third-party beneficiary under the Management Agreement and the Manager will take
all steps appropriate under the circumstances to collect the amount due from the
Trust.
7. Marketing
Materials.
(a) During
the term of this Agreement, the Sub-Adviser agrees to furnish the Manager at its
principal office for prior review and approval by the Manager all written and/or
printed materials, including but not limited to, PowerPointÒ or slide
presentations, news releases, advertisements, brochures, fact sheets and other
promotional, informational or marketing materials (the “Marketing Materials”)
for internal use or public dissemination, that are produced or are for use or
reference by the Sub-Adviser, its affiliates or other designees, broker-dealers
or the public in connection with the Series, and Sub-Adviser shall not use any
such materials if the Manager reasonably objects in writing within five business
days (or such other period as may be mutually agreed) after receipt
thereof. Marketing Material may be furnished to the Sub-Adviser by
first class or overnight mail, facsimile transmission equipment, electronic
delivery or hand delivery.
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(b) During
the term of this Agreement, the Manager agrees to furnish the Sub-Adviser at its
principal office all prospectuses, proxy statements, reports to shareholders, or
Marketing Material 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 and/or its affiliates, its services and its
clients. The Manager agrees to use its reasonable best efforts to
ensure that materials prepared by its employees or agents or its affiliates that
refer to the Sub-Adviser or its clients in any way are consistent with those
materials previously approved by the Sub-Adviser as referenced in the first
sentence of this paragraph. Materials may be furnished to the
Sub-Adviser by first class or overnight mail, facsimile transmission equipment,
electronic delivery or hand delivery.
8. Compliance.
(a) The
Sub-Adviser agrees to use reasonable compliance techniques as the Manager or the
Board of Trustees may adopt, including any written compliance procedures, which
will be provided to the Sub-Adviser.
(b) The
Sub-Adviser agrees that it shall promptly notify the Manager and the Trust (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 formal proceedings or a
formal 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 Trust promptly of any material fact known to the
Sub-Adviser respecting or relating to the Sub-Adviser that is not contained in
the Registration Statement or prospectus for the Trust (which describes the
Series), or any amendment or supplement thereto, or if any statement contained
therein that becomes untrue in any material respect.
(c) The
Manager agrees that it shall promptly notify the Sub-Adviser (1) in the event
that the SEC has censured the Manager or the Trust; placed limitations upon
either of their activities, functions, or operations; suspended or revoked the
Manager’s registration as an investment adviser; or has commenced proceedings or
an investigation that may result in any of these actions, or (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 Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust’s or the
Manager’s request in compliance with the requirements of Rule 31a-3 under the
1940 Act, although the Sub-Adviser may, at its own expense, make and retain a
copy of such records. The Sub-Adviser further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act the records required to
be maintained by Rule 31a-l under the 1940 Act.
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10. Cooperation;
Confidentiality. Each party to this Agreement agrees to
cooperate with the other party and with all appropriate governmental authorities
having the requisite jurisdiction (including, but not limited to, the SEC) in
connection with any investigation or inquiry relating to this Agreement or the
Trust. Subject to the foregoing, the Sub-Adviser shall treat as
confidential all information pertaining to the Trust and actions of the Trust,
the Manager and the Sub-Adviser, and the Manager shall treat as confidential and
use only in connection with the Series all information furnished to the Trust or
the Manager by the Sub-Adviser, in connection with its duties under the
agreement except that the aforesaid information need not be treated as
confidential if required to be disclosed under applicable law, if generally
available to the public through means other than by disclosure by the
Sub-Adviser or the Manager, or if available from a source other than the
Manager, Sub-Adviser or Trust.
11. Representations Respecting
Sub-Adviser. The Manager agrees that neither the Manager, nor
affiliated persons of the Manager, shall give any information or make any
representations or statements in connection with the sale of shares of the
Series concerning the Sub-Adviser or the Series other than the information or
representations contained in the Registration Statement, prospectus, or
statement of additional information for the Trust’s shares, as they may be
amended or supplemented from time to time, or in reports or proxy statements for
the Trust, or in Marketing Materials approved in advance by the Sub-Adviser,
except with the prior permission of the Sub-Adviser.
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 has reserved the right to
reasonably direct any action hereunder taken on its behalf by the
Sub-Adviser.
13. 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 Trust 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.
14. Indemnification.
(a) The
Manager agrees to indemnify and hold harmless the Sub-Adviser, any affiliated
person of the Sub-Adviser, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls (“controlling person”) the Sub-Adviser (all
of such persons being referred to as “Sub-Adviser Indemnified Persons”) against
any and all losses, claims, damages, liabilities, or litigation (including legal
and other expenses) to which a Sub-Adviser Indemnified Person may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Manager’s responsibilities to the
Trust which (1) may be based upon the Manager’s negligence, willful misfeasance,
or bad faith in the performance of its duties (which could include a negligent
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action
or a negligent omission to act), or by reason of the Manager’s reckless
disregard of its obligations and duties under this Agreement, or (2) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus covering shares of the
Trust or any Series, or any amendment thereof or any supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon information
furnished to the Manager or the Trust or to any affiliated person of the Manager
by a Sub-Adviser Indemnified Person; provided however, that in no case shall the
indemnity in favor of the Sub-Adviser Indemnified Person be deemed to protect
such person against any liability to which any such person would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reason of its reckless disregard of obligations
and duties under this Agreement.
(b) Notwithstanding
Section 13 of this Agreement, the Sub-Adviser agrees to indemnify and hold
harmless the Manager, any affiliated person of the Manager, and any controlling
person of the Manager (all of such persons being referred to as “Manager
Indemnified Persons”) against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Manager
Indemnified Person may become subject under the 1933 Act, 1940 Act, the Advisers
Act, under any other statute, at common law or otherwise, arising out of the
Sub-Adviser’s responsibilities as Sub-Adviser of the Series which (1) may be
based upon the Sub-Adviser’s negligence, willful misfeasance, or bad faith in
the performance of its duties (which could include a negligent action or a
negligent omission to act), or by reason of the Sub-Adviser’s reckless disregard
of its obligations and duties under this Agreement, or (2) may be based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus covering the shares of the Trust or any
Series, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact known or which should have been known
to the Sub-Adviser and was required to be stated therein or necessary to make
the statements therein not misleading, if such a statement or omission was made
in reliance upon information furnished to the Manager, the Trust, or any
affiliated person of the Manager or Trust by the Sub-Adviser or any affiliated
person of the Sub-Adviser; provided, however, that in no case shall the
indemnity in favor of a Manager Indemnified Person be deemed to protect such
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, gross 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 14 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
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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 14 with
respect to any claim made against a Manager Indemnified Person unless such
Manager Indemnified Person shall have notified the Sub-Adviser in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Manager
Indemnified Person (or after such Manager Indemnified Person shall have received
notice of such service on any designated agent), but failure to notify the
Sub-Adviser of any such claim shall not relieve the Sub-Adviser from any
liability which it may have to the Manager Indemnified Person against whom such
action is brought except to the extent the Sub-Adviser is prejudiced by the
failure or delay in giving such notice. In case any such action is
brought against the Manager Indemnified Person, the Sub-Adviser will be entitled
to participate, at its own expense, in the defense thereof or, after notice to
the Manager Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person. If the Sub-Adviser
assumes the defense of any such action and the selection of counsel by the
Sub-Adviser to represent both the Sub-Adviser and the Manager Indemnified Person
would result in a conflict of interests and therefore, would not, in the
reasonable judgment of the Manager Indemnified Person, adequately represent the
interests of the Manager Indemnified Person, the Sub-Adviser will, at its own
expense, assume the defense with counsel to the Sub-Adviser and, also at its own
expense, with separate counsel to the Manager Indemnified Person, which counsel
shall be satisfactory to the Sub-Adviser and to the Manager Indemnified
Person. The Manager Indemnified Person shall bear the fees and
expenses of any additional counsel retained by it, and the Sub-Adviser shall not
be liable to the Manager Indemnified Person under this Agreement for any legal
or other expenses subsequently incurred by the Manager Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Sub-Adviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Manager Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Manager Indemnified
Person.
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15. Duration and
Termination.
(a) With
respect to each Series identified as a Series on Schedule
A hereto as in effect on the date of this Amendment, unless earlier
terminated with respect to any Series this Agreement shall continue in full
force and effect through November
30, 2010. Thereafter, unless earlier terminated with respect
to a Series, the Agreement shall continue in full force and effect with respect
to each such Series for periods of one year, provided that such continuance is
specifically approved at least annually by (i) the vote of a majority of the
Board of Trustees of the Trust, or (ii) the vote of a majority of the
outstanding voting shares of the Series (as defined in the 1940 Act), and
provided that such continuance is also approved by the vote of a majority of the
Board of Trustees of the Trust who are not parties to this Agreement or
“interested persons” (as defined in the 0000 Xxx) of the Trust or the Manager,
cast in person at a meeting called for the purpose of voting on such
approval.
With
respect to any Series that was added to Schedule
A hereto as a Series after the date of this Amendment, the Agreement
shall become effective on the later of (i) the date Schedule
A is amended to reflect the addition of such Series as a Series under the
Agreement or (ii) the date upon which the shares of the Series are first sold to
the public, subject to the condition that the Trust’s Board of Trustees,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 0000 Xxx) of the Manager, and the shareholders of such
Series, shall have approved this Agreement. Unless terminated earlier
as provided herein with respect to any such Series, the Agreement shall continue
in full force and effect for a period of two years from the date of its
effectiveness (as identified above) with respect to that
Series. Thereafter, unless earlier terminated with respect to a
Series, the Agreement shall continue in full force and effect with respect to
each such Series for periods of one year, provided that such continuance is
specifically approved at least annually by (i) the vote of a majority of the
Board of Trustees of the Trust, or (ii) vote of a majority of the outstanding
voting shares of such Series (as defined in the 1940 Act), and provided that
such continuance is also approved by the vote of a majority of the Board of
Trustees of the Trust who are not parties to this Agreement or “interested
persons” (as defined in the 0000 Xxx) of the Trust or the Manager, 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 Trust, unless such approval shall be required by any other
applicable law or otherwise. Notwithstanding the foregoing, this
Agreement may be terminated with respect to any Series covered by this
Agreement: (a) by the Manager at any time, upon sixty (60) days’ written notice
to the Sub-Adviser and the Trust, (b) at any time without payment of any penalty
by the Trust, by the Trust’s Board of Trustees or a majority of the outstanding
voting securities of each Series, upon sixty (60) days’ written notice to the
Manager and the Sub-Adviser, or (c) by the Sub-Adviser upon three (3) months’
written notice unless the Trust or the Manager requests additional time to find
a replacement for the Sub-Adviser, in which case the Sub-Adviser shall allow the
additional time
-10-
requested
by the Trust or Manager not to exceed three (3) additional months beyond the
initial three-month notice period; provided, however, that the Sub-Adviser may
terminate this Agreement at any time without penalty, effective upon written
notice to the Manager and the Trust, in the event either the Sub-Adviser (acting
in good faith) or the Manager ceases to be registered as an investment adviser
under the Advisers Act or otherwise becomes legally incapable of providing
investment management services pursuant to its respective contract with the
Trust, or in the event the Manager becomes bankrupt or otherwise incapable of
carrying out its obligations under this Agreement, or in the event that the
Sub-Adviser does not receive compensation for its services from the Manager or
the Trust as required by the terms of this agreement.
In
the event of termination for any reason, all records of each Series for which
the Agreement is terminated shall promptly be returned to the Manager or the
Trust, free from any claim or retention of rights in such record by the
Sub-Adviser, although the Sub-Adviser may, at its own expense, make and retain a
copy of such records. This 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, 11, 12,
13, and 14 of this Agreement shall remain in effect, as well as any applicable
provision of this Section numbered 15 and, to the extent that only amounts are
owed to the Sub-Adviser as compensation for services rendered while the
agreement was in effect, Section 6.
(b) Notices.
Any
notice must be in writing and shall be sufficiently given (1) when delivered in
person, (2) when dispatched by telegram or electronic facsimile transfer
(confirmed in writing by postage prepaid first class air mail simultaneously
dispatched), (3) when sent by internationally recognized overnight courier
service (with receipt confirmed by such overnight courier service), or (4) when
sent by registered or certified mail, to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
|
If
to the Trust:
|
||
|
0000
Xxxx Xxxxxxxxxx Xxxxx Xxxx
|
||
|
Xxxxxxxxxx,
Xxxxxxx 00000
|
||
|
Attention: Xxxx
X. Xxxxxxx, Xx.
|
||
|
If
to the Manager:
|
||
|
Directed
Services LLC
|
||
|
0000
Xxxx Xxxxxxxxxx Xxxxx Xxxx
|
||
|
Xxxxxxxxxx,
Xxxxxxx 00000
|
||
|
Attention: Xxxx
Xxxxx
|
||
-11-
|
If
to the Sub-Adviser:
|
||
|
Artio
Global Management LLC
|
||
|
000
Xxxxxxx Xxxxxx
|
||
|
Xxx
Xxxx, XX 00000
|
||
|
Attention: Xxxxxx
Xxxxxx
|
||
16. Exclusivity.
During
the term of this Agreement Sub-Adviser shall not provide advisory, sub-advisory
or similar services to any investment company that (a) is registered under the
U.S. 1940 Act, (b) has an international core investment strategy substantially
similar to the Series, (c) is authorized to charge a front-end or contingent
deferred sales charge on its shares, and (d) is offered to residents of the
United States through registered representatives of broker-dealers (“Covered
Fund”), or any adviser or sub-adviser to a Covered Fund, other than as described
in Schedule B
hereto. This provision is not intended to limit Sub-Adviser’s ability
to provide advisory services to privately managed institutional accounts, only
Covered Funds.
The
Sub-Adviser may not consult with any other sub-adviser of the Trust concerning
transactions in securities or other assets for any investment portfolio of the
Trust, including the Series, except that such consultations are permitted
between the current 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.
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 New York, 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 Trust 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.
-12-
(d) To
the extent permitted under Section 15 of this Agreement, this Agreement may only
be assigned by any party with the prior written consent of the other
parties.
(e) If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby, and to this extent, the provisions of this Agreement shall
be deemed to be severable.
(f) Nothing
herein shall be construed as constituting the Sub-Adviser as an agent or
co-partner of the Manager, or constituting the Manager as an agent or co-partner
of the Sub-Adviser.
(g) This
agreement may be executed in counterparts.
IN WITNESS WHEREOF, the
parties hereto have caused this instrument to be executed as of the day and year
first above written.
|
DIRECTED
SERVICES LLC
|
||
|
By:
|
/s/ Xxxx Xxxxx
|
|
|
Xxxx
Xxxxx
|
||
|
Senior
Vice President
|
||
|
ARTIO
GLOBAL MANAGEMENT LLC
|
||
|
By:
|
Illegible / /s/Xxxxxx
X. Xxxxx
|
|
|
|
Illegible / Xxxxxx X.
Xxxxx
|
|
|
|
Title
C.O.O / VP
|
|
-13-
AMENDED
SCHEDULE A
with
respect to the
between
DIRECTED
SERVICES LLC
and
ARTIO
GLOBAL MANAGEMENT LLC
|
Series
|
Annual Sub-Adviser
Fee
(as
a percentage of average daily net assets)
|
|
ING
Artio Foreign Portfolio
|
0.45%
on first $500 million;
when
assets are greater than or equal to $500 million, the fee schedule resets
as indicated below:
0.40%
on all assets*
|
|
*
|
For
purposes of calculating fees under this Agreement, the assets of the
series shall be aggregated with the assets of the ING Foreign Fund, which
is not a party to this Agreement. The aggregated assets will be
applied to the above schedule and the resulting fee shall be prorated back
to the series and their respective Adviser based on relative net
assets.
|
-14-
SCHEDULE
B
Sub-Advisor
may continue to provide advisory services to the Xxxxxx Xxxx International
Equity Fund but may not offer shares of that fund through any broker dealer wrap
fee program.
Sub-Advisor
may continue to provide sub advisory services to the investment advisers to the
following RICs: Amstar International Equity Fund, Heritage International Equity
Fund, Mercantile International Equity Fund, Wilmington International
Multi-Manager Portfolio.
-15-
