EXHIBIT (d)(1)
ING EQUITY TRUST
AMENDED AND RESTATED
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 23rd day of September, 2002 by and between ING
EQUITY TRUST, a Massachusetts business trust (the "Trust"), and ING INVESTMENTS,
LLC, an Arizona limited liability company (the "Adviser").
The Trust is an open-end management investment company registered under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
consisting of series, and the series to which this Agreement applies are listed
on Schedule A hereto (individually and collectively referred to herein as
"Series"), as such schedule may be amended from time to time.
The Trust desires to retain the Adviser to render investment advisory
services to the Series, and the Adviser is willing to render such investment
advisory on the terms set forth below.
The parties agree as follows:
1. The Trust hereby appoints the Adviser to act as investment adviser to
the Trust and the Series for the period set forth in Schedule A hereto, as such
schedule may be amended from time to time, and on the terms set forth in this
Agreement. The Adviser accepts such appointment and agrees to render the
services described, for the compensation provided, in this Agreement.
2. Subject to the supervision of the Trustees, the Adviser shall manage
the investment operations of the Series and the composition of each Series'
portfolio, including the purchase and retention and disposition of portfolio
securities, in accordance with each Series' investment objectives, policies and
restrictions as stated in each Series' Prospectus and Statement of Additional
Information (as defined below) subject to the following understandings:
(a) The Adviser shall provide supervision of the Series'
investments and determine from time to time what investments will be
made, held or disposed of or what securities will be purchased and
retained, sold or loaned by a Series, and what portion of the assets
will be invested or held uninvested as cash.
(b) The Adviser shall use its best judgment in the performance of
its duties under this Agreement.
(c) The Adviser, in the performance of its duties and obligations
under this Agreement, shall (i) act in conformity with the Declaration
of Trust, By-Laws, Prospectus and Statement of Additional Information
of each Series, with the instructions and directions of the Trustees
and (ii) conform to and comply with
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the requirements of the Investment Company Act and all other applicable
federal and state laws and regulations.
(d) (i) The Adviser shall determine the securities to the
purchased or sold by a Series and will place orders pursuant
to its determinations with or through such persons, brokers or
dealers to carry out the policy with respect to brokerage as
set forth in a Series' Prospectus and Statement of Additional
Information or as the Trustees may direct from time to time.
In providing a Series with investment supervision, the Adviser
will give primary consideration to securing the most favorable
price and efficient execution. The Adviser may also consider
the financial responsibility, research and investment
information and other services and research related products
provided by brokers or dealers who may effect or be a party to
any such transactions or other transactions to which other
clients of the Adviser may be a party. Each Series recognizes
that the services and research related products provided by
such brokers may be useful to the Adviser in connection with
its services to other clients.
(ii) When the Adviser deems the purchase or sale of a
security to be in the best interest of a Series as well as
other clients, the Adviser, to the extent permitted by
applicable laws and regulations, may aggregate the securities
to be sold or purchased in order to obtain the most favorable
price or lower brokerage commissions and efficient execution.
In such event, allocation of the securities so purchased or
sold, as well as the expenses incurred in the transactions,
will be made by the Adviser in the manner it considers to be
the most equitable and consistent with its fiduciary
obligations to a Series and to such other clients.
(e) The Adviser shall maintain, or cause to be maintained, all
books and records required under the Investment Company Act to the
extent not maintained by the custodian of a Series. The Adviser shall
render to the Trustees such periodic and special reports as the
Trustees may reasonably request.
(f) The Adviser shall provide a Series' custodian on each business
day information relating to all transactions concerning a Series'
assets.
(g) The investment management services of the Adviser to the Trust
and to the Series under this Agreement are not to be deemed exclusive,
and the Adviser shall be free to render similar services to others.
3. The Trust has delivered to the Adviser copies of each of the following
documents and will deliver to it all future amendments and supplements, if any:
(a) Declaration of Trust, as amended, as filed with the Secretary
of the Commonwealth of Massachusetts (such Declaration of Trust, as in
effect on the
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date hereof and as further amended from time to time, is herein called
the "Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date
hereof and as amended from time to time, are herein called the
"By-Laws");
(c) Certified resolutions of the Trustees authorizing the
appointment of the Adviser and approving this Agreement on behalf of
the Trust and the Series;
(d) Registration Statement on Form N-1A under the Investment
Company Act and the Securities Act of 1933, as amended from time to
time (the "Registration Statement"), as filed with the Securities and
Exchange Commission (the "Commission"), relating to the Trust and
shares of beneficial interest of the Series and all amendments thereto.
(e) Notification of Registration of the Trust under the Investment
Company Act on Form N-8A as filed with the Commission and all
amendments thereto;
(f) Prospectus and Statement of Additional Information included in
the Registration Statement, as amended from time to time. All
references to this Agreement, the Prospectus and the Statement of
Additional Information shall be to such documents as most recently
amended or supplemented and in effect.
4. The Adviser shall authorize and permit any of its directors, officers
and employees who may be elected as Trustees, or Officers of the Trust or a
Series to serve in the capacities in which they are elected. All services to be
furnished by the Adviser under this Agreement may be furnished through such
directors, officers or employees of the Adviser.
5. The Adviser agrees that all records which it maintains for the Trust or
the Series are property of the Trust or the Series. The Adviser will surrender
promptly to the Trust or the Series any such records upon either the Trust's or
the Series' request. The Adviser further agrees to preserve such records for the
periods prescribed in Rule 31a-2 of the Commission under the Investment Company
Act.
6. In connection with the services rendered by the Adviser under this
Agreement, the Adviser will pay all of the following expenses:
(a) the salaries and expenses of all personnel of the Trust, the
Series and the Adviser required to perform the services to be provided
pursuant to this Agreement, except the fees of the Trustees who are not
affiliated persons of the Adviser, and
(b) all expenses incurred by the Adviser, the Trust or the Series
in connection with the performance of the Adviser's responsibilities
hereunder, other than
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brokers' commissions and any issue or transfer taxes chargeable to a
Series in connection with its securities transactions.
7. With respect to ING Growth Opportunities Fund, ING SmallCap
Opportunities Fund and ING Research Enhanced Index Fund, in the event the
expenses of a Series for any fiscal year (including the fees payable to the
Adviser but excluding interest, taxes, brokerage commissions, distribution fees
and litigation and indemnification expenses and other extraordinary expenses not
incurred in the ordinary course of the Series' business) exceed the lowest
applicable annual expense limitation established pursuant to the statutes or
regulations of any jurisdictions in which shares of the Series are then
qualified for offer and sale, the compensation due the Adviser will be reduced
by the amount of such excess, or, if such reduction exceeds the compensation
payable to the Adviser, the Adviser will pay the Series, whose expenses exceed
such expense limitation, the amount of such reduction which exceeds the amount
of such compensation.
8. For the services provided and the expenses assumed to this Agreement, a
Series will pay to the Adviser as compensation at the rate set forth opposite
such the Series' name on Schedule A hereto, such fee to be accrued daily and
paid monthly.
9. The Adviser may rely on information reasonably believed by it to be
accurate and reliable. Neither the Adviser nor its officers, directors,
employees or agents or controlling persons shall be liable for any error or
judgment or mistake of law, or for any loss suffered by the Trust or a Series in
connection with or arising out of the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on the part of the Adviser in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
10. This Agreement shall continue with respect to a Series until the date
set forth opposite such the Series' name on Schedule A hereto (the "Reapproval
Date") and shall continue automatically for successive annual periods, provided
that such continuance is specifically approved at least annually by the
affirmative vote of (i) a majority of the Trustees of the Trust acting on behalf
of such Series, who are not interested persons of the Trust, cast in person at a
meeting called for the purpose of voting on such approval, and (ii) a majority
of the Trustees of the Trust or the holders of a majority of the outstanding
voting securities of such Series; provided however, that this Agreement may be
terminated with respect to such Series by the Trust, at any time, without the
payment of any penalty, by the majority of the Trustees acting on behalf of a
Series or by vote of a majority of the outstanding voting securities (as defined
in the Investment Company Act) of a Series, or by the Adviser at any time,
without the payment of any penalty, on not more than 60 days' nor less than 30
days' written notice to the other party.
11. This Agreement shall terminate automatically in the event of its
assignment, as such term is defined in Section 2(a)(4) of the Investment Company
Act, provided that a transaction which does not, under the Investment Company
Act, result in a change of actual control or management of the Adviser's
business shall not be deemed to be an assignment for the purposes of this
Agreement.
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12. Nothing in this Agreement shall limit or restrict the right of any
Trustee, officer or employee of the Adviser who may also be a Trustee, officer
or employee of the Trust or a Series to engage in any other business or to
devote his time and attention in part to the management or other aspect of any
business, whether of a similar or dissimilar nature, nor limit or restrict the
right of the Adviser to engage in any other business or to render services of
any kind to any other person or entity.
13. During the term of this Agreement, the Trust and the Series agree to
furnish the Adviser at its principal office all prospectuses, proxy statements,
reports to shareholders, sales literature, or other material prepared for
distribution to shareholders of a Series or the public, which refer in any way
to the Adviser, prior to use thereof and not to use such material if the Adviser
reasonably objects in writing within five business days (or such other time as
may be mutually agreed) after receipt. In the event of termination of the
Agreement, the Trust or a Series will continue to furnish to the Adviser such
other information relating to the business affairs of the Trust or a Series as
the Adviser at any time, or from time to time, reasonably requests in order to
discharge its obligations hereunder.
14. This Agreement may be amended by mutual agreement, but only after
authorization of such amendments by the affirmative vote of (i) the holders of
the majority of the outstanding voting securities of the Series and (ii) a
majority of the members of the Trustees who are not interested persons of the
Trust or the Adviser, cast in person at a meeting called for the purpose of
voting on such approval.
15. The Adviser, the Trust and the Series each agree that the name "ING" is
proprietary to, and a property right of, the Adviser. The Trust and the Series
agree and consent that (i) each will only use the name "ING" as part of its name
and for no other purpose, (ii) each will not purport to grant any third party
the right to use the name "ING" and (iii) upon the termination of this
Agreement, the Trust and the Series shall, upon the request of the Adviser,
cease to use the name "ING", and shall use its best efforts to cause its
officers, Trustees and shareholders to take any and all actions which the
Adviser may request to effect the foregoing.
16. Any notice or other communications required to be given pursuant to
this Agreement shall be deemed to be given if delivered of mailed by registered
mail, postage paid, (1) to the Adviser at 0000 X. Xxxxxxxxxx Xxxxx Xxxx,
Xxxxxxxxxx, XX 00000, Attention: Secretary; or (2) to the Trust or a Series at
0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: Secretary.
17. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts. The terms "interested person",
"assignment", and "vote of the majority of the outstanding securities" shall
have the meaning set forth in the Investment Company Act.
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18. The Declaration of Trust, establishing the Trust, a copy of which,
together with all amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts, provides that the
name "ING Equity Trust" refers to the Trustees under the Declaration
collectively as trustees, but not individually or personally; and no Trustee,
shareholder, officer, employee or agent of the Trust or a Series may be held to
any personal liability, nor may resort be had to their private property for the
satisfaction of any obligation or claim or otherwise in connection with the
affairs of the Trust, but the Trust property only shall be liable.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
written above.
ING EQUITY TRUST
By: /s/ Xxxxxx X. Naka
--------------------------------
Xxxxxx X. Naka
Senior Vice President
ING INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
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SCHEDULE A
WITH RESPECT TO THE
AMENDED AND RESTATED
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING EQUITY TRUST
AND
ING INVESTMENTS, LLC
EFFECTIVE SEPTEMBER 23, 2002
ANNUAL INVESTMENT
MANAGEMENT FEE
--------------
(as a percentage of average LAST CONTINUED/
SERIES daily net assets) APPROVED BY BOARD REAPPROVAL DATE
------ ----------------- ---------------
ING Growth Opportunities Fund 0.95% August 20, 2002 September 1, 2003
ING MidCap Opportunities Fund 1.00% July 11, 2002 September 1, 2003
ING MidCap Value Fund 1.00% November 2, 2001 September 1, 2003
ING Real Estate Fund* 0.70% August 20, 2002 September 1, 2003
ING Research Enhanced Index Fund 0.70% August 20, 2002 September 1, 2003
ING SmallCap Opportunities Fund 1.00% August 20, 2002 September 1, 2003
ING SmallCap Value Fund 1.00% November 2, 2001 September 1, 2003
---------------
* This Amended and Restated Schedule A will be effective with respect to
the Series upon the effective date of the post-effective amendment to
the Trust's Registration Statement with respect to the Series.
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EXHIBIT 1
TO SCHEDULE A
SERIES
------------------
* Measured over the performance period which, beginning twelve months
after the Series has commenced operations, will be a rolling 12-month
period ending with the most recent calendar month. Since the
performance adjustment is based on the comparative performance of Class
A shares against the Index, the controlling factor is not whether the
performance of Class A shares is up or down, but whether that
performance is up or down more than or less than that of the Index. In
addition, the relative performance of Class A shares against the Index
is measured only for the relevant performance period, and does not take
into account performance over longer or shorter periods of time.
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