EXHIBIT (d)(4)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 1st day of March, 2004 between ING
Investments, LLC, an Arizona limited liability company (the "Manager"), and
Wellington Management Company, LLP, a Massachusetts limited liability
partnership (the "Sub-Adviser").
WHEREAS, ING Series Fund, Inc. (the "Fund") is registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), as an
open-end, investment management 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 an Investment Management Agreement, dated
March 1, 2002, as amended, (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; and
WHEREAS, the Fund's Board of Directors (the "Board") 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 sub-adviser and manager to the series of the Fund (or
portions thereof) 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 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.
2. Sub-Adviser Duties. Subject to the supervision of the
Fund's Board 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
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 and other investments in which it may invest. To the extent permitted
by the investment policies of a 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 a Series' investment objective or objectives, policies, and
restrictions as stated in the Fund's Registration Statement filed with the
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 Fund's Board 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. In carrying out its duties under the Sub-Advisory 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 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 to
consult with, upon reasonable request, 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. In making any 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 material 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 on a daily basis, such
confirmation, trade tickets, or other documents and information, including, but
not limited to, Cusip, Cedel, or other numbers that identify securities to be
2
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 Fund or
adopted by the Fund's Board, 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 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.
(b) 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
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.
(c) The Sub-Adviser will provide reports to the Fund's Board
for consideration at meetings of the Board on the investment program for each
Series and the issuers and securities represented in each Series' portfolio, and
will furnish the Fund's Board with respect to each Series such periodic and
special reports as the Directors 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 Fund, or
determined in consultation with the Manager, which may include price (including
the applicable brokerage commission or dollar
3
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, on behalf of a Series, by other aspects of
the portfolio execution services offered. Subject to such policies as the Fund's
Board 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. 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 Fund's Board
indicating the broker-dealers to which such allocations have been made and the
basis therefor.
On occasions when the Sub-Adviser deems the purchase or sale
of a security to be in the best interest of the Series as well as other clients
of the Sub-Adviser, it may allocate such transactions in the manner it considers
to be the most equitable and consistent with its fiduciary obligation to the
Series and to such other clients.
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, at the
time material changes to Form ADV are 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
4
management duties under this Agreement. The Manager or the Fund 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 by the 10th
business day of the following month. 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 for a Series under said Management Agreement
when due, or the amount that was paid is insufficient to cover the portion of
the Sub-Adviser's fee for that series (determined by prorating among the Series
under this Agreement by relative net assets) 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.
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,
Microsoft PowerPoint(R) 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 5 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.
(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 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 5
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 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. Marketing Materials may be furnished to the
Sub-Adviser by first class or overnight mail, facsimile transmission equipment,
electronic delivery or hand delivery.
5
8. Compliance.
(a) The Sub-Adviser agrees to use reasonable compliance
techniques, 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 of 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 any 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 a 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 a 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 subparagraphs (b)(5), (6), (7), (9), (10) and (11) and paragraph
(f) of Rule 31a-l under the 1940 Act.
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 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 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 Fund.
6
11. 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,
provided, however, that 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 have 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 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, 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
7
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 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 a
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 regarding the Sub-Adviser, or the Sub-Adviser's
past performance 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, or 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,
8
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 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.
9
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, including a
majority of those Directors 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 with
respect to each Series until DECEMBER 31, 2005, 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
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
Directors 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 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 or a majority of the
outstanding voting securities of a Series, upon 60 days' written notice to the
Manager and the Sub-Adviser, or (c) by the Sub-Adviser upon 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 3 additional
months beyond the initial 3-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 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.
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.
10
(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 Series Fund, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Counsel
If to the Manager:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to the Sub-Adviser:
Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Legal Services
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
with respect to a Series until approved by an affirmative vote of (i) the
holders of a majority of the outstanding voting securities of the Series, and
(ii) the Directors of the Fund, including a majority of the Directors of the
Fund who are not interested persons of any party to this Agreement, cast in
person at a meeting called for the purpose of voting on such approval, if such
approval is 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 1940 Act.
11
(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 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.
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/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
WELLINGTON MANAGEMENT
COMPANY, LLP
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: President
-------------------------------
12
SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
WELLINGTON MANAGEMENT COMPANY, LLP
ANNUAL SUB-ADVISER FEE
SERIES (AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
------ ---------------------------------------------
ING Equity Income Fund 0.40% on the first $100 million of assets
0.30% on assets in excess of $100 million
13
