Exhibit (d)(5)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT is made as of the 23rd day of September, 2002, by and
between ING EQUITY TRUST, a Massachusetts business trust (the "Trust"), on
behalf of its series as listed on Schedule A (the "Fund"), as such schedule may
be amended from time to time, and ING INVESTMENTS, LLC, an Arizona limited
liability company (the "Manager"), with respect to the following recital of
fact.
W I T N E S S E T H:
WHEREAS, the Trust is registered as a open-end, diversified, management
investment company, under the Investment Company Act of 1940, as amended; and
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended and is engaged in the business of
supplying investment advice, investment management and administrative services,
as an independent contractor; and
WHEREAS, the Trust desires to retain the Manager to render advice and
services to the Trust on behalf of the Fund pursuant to the terms and provisions
of this Agreement, and the Manager is interested in furnishing said advice and
services.
NOW, THEREFORE, in consideration of the covenants and the mutual promises
hereinafter set forth, the parties hereto, intending to be legally bound hereby,
mutually agree as follows:
1. INVESTMENT MANAGEMENT. The Manager shall manage the Fund's affairs and shall
supervise all aspects of the Fund's operations, including the investment and
reinvestment of the cash, securities or other properties comprising the Fund's
assets, subject at all times to the policies and control of the Trust's Board of
Trustees. The Manager shall give the Fund the benefit of its best judgment,
efforts and facilities in rendering its services as Manager.
2. DUTIES OF THE INVESTMENT MANAGER. In carrying out its obligation under
paragraph 1 hereof, the Manager shall:
(a) supervise and manage all aspects of the Fund's operations;
(b) provide the Fund with such executive, administrative and clerical
services as are deemed advisable by the Trust's Board of Trustees;
(c) arrange, but not pay for, the periodic updating and filing of
prospectuses and supplements thereto, proxy material, tax returns, reports
to the Fund's shareholders and reports to and filings with the Securities
and Exchange Commission and state Blue Sky authorities;
(d) provide the Fund with, or obtain for it, adequate office space and all
necessary office equipment and service, including telephone service, heat,
utilities, stationery supplies and similar items for the Fund's principal
office;
(e) provide the Board of Trustees of the Trust on a regular basis with
financial reports and analyses on the Fund's operations and the operations
of comparable investment companies;
(f) obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign and otherwise, whether affecting the economy generally or the
portfolio of the Fund, and whether concerning the individual issuers whose
securities are included in the Fund's portfolio or the activities in which
they engage, or with respect to securities which the Manager considers
desirable for inclusion in the Fund's portfolio;
(g) determine what issuers and securities shall be represented in the
Fund's portfolio and regularly report them to the Trust's Board of
Trustees;
(h) formulate and implement continuing programs for the purchases and
sales of the securities of such issuers and regularly report thereon to
the Trust's Board of Trustees; and
(i) take, on behalf of the Fund, all actions which appear necessary to
carry into effect such purchase and sale programs and supervisory
functions as aforesaid, including the placing of orders for the purchase
and sale of portfolio securities, it being understood that the Fund shall
reimburse the Manager for the costs of such actions upon proper
accounting.
3. BROKER-DEALER RELATIONSHIPS. The Manager is responsible for decisions to buy
and sell securities for the Fund, broker-dealer selection, and negotiation of
its brokerage commission rates. The Manager's primary consideration in effecting
a security transaction will be execution at the most favorable price.
In selecting a broker-dealer to execute each particular transaction, the
Manager will take the following into consideration: the best net price
available; the reliability, integrity and financial condition of the
broker-dealer; the size of and difficulty in executing the order; the value of
the expected contribution of the broker-dealer to the investment performance of
the Fund on a continuing basis; and other factors such as the broker-dealer's
ability to engage in transactions in shares of issuers which are typically not
listed on an organized stock exchange. Accordingly, the price to the Fund in any
transaction may be less favorable than that available from another broker-dealer
if the difference is reasonably justified by other aspects of the portfolio
execution services offered. Subject to such policies as the Board of Trustees
may determine, the Manager 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 the Fund to pay a broker or dealer that provides brokerage
and research services to the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of
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commission another broker or dealer would have charged for effecting that
transaction, if the Manager 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 or dealer, viewed in terms of either that
particular transaction or the Manager's overall responsibilities with respect to
the Fund.
The Manager is further authorized to allocate the orders placed by it on
behalf of the Fund to such brokers and dealers who also provide research or
statistical material, or other services to the Fund or the Manager. Such
allocations shall be in such amounts and proportions as the Manager shall
determine and the Manager will report on said allocations regularly to the Board
of Trustees of the Trust, on behalf of the Fund indicating the brokers to whom
such allocations have been made and the basis therefor.
4. CONTROL BY BOARD OF TRUSTEES. Any management or supervisory activities
undertaken by the Manager pursuant to this Agreement, as well as other
activities undertaken by the Manager on behalf of the Fund pursuant thereto,
shall at all times be subject to any directives of the Board of Trustees of the
Trust.
5. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out is obligations under
this Agreement, the Manager shall at all times conform to:
(a) all applicable provisions of the Investment Company Act of 1940 and
any rules and regulations adopted thereunder, as amended; and
(b) the provisions of the Registration Statement of the Fund under the
Securities Act of 1933 and the Investment Company Act of 1940, as amended;
and
(c) the provisions of the Declaration of Trust of the Trust, as amended;
and
(d) the provisions of the By-laws of the Trust, as amended; and
(e) any other applicable provisions of state and Federal law.
6. EXPENSES. The expenses connected with the Fund shall be allocable between the
Fund and the Manager as follows:
(a) The Manager shall furnish at its expense and without cost to the Fund,
the services of a President, Secretary and one or more Vice Presidents of
the Fund, to the extent that such additional officers may be required by
the Fund for the proper conduct of its affairs;
(b) Nothing in Subparagraph (a) hereof shall be construed to require the
Manager to bear the portion allocable to the Fund of the salary of the
Manager's portfolio trader and the compensation paid to personnel working
under his or her direction to the extent such salary and compensation does
not exceed $15,000 per annum. Notwithstanding the obligation of the Fund
to bear the expense of the items referred to above, the Manager
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may pay the salaries, including any applicable employment or payroll taxes
and other salary costs, of the personnel carrying out such functions and
the Fund shall reimburse the Manager therefor upon proper accounting;
(c) The Manager shall bear the cost of the portion allocable to the Fund
of the salary of the Manager's portfolio trader and the compensation paid
to personnel working under his or her direction to the extent such salary
and compensation exceeds $15,000 per annum;
(d) The Fund shall pay or cause to be paid all expenses of the stock
transfer or dividend agent or agents appointed by the Fund;
(e) The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund, including, without limitation: the charges and expenses of
the registrar, any custodian or depository appointed by the Fund for the
safekeeping of its cash, portfolio securities and other property, and any
accounting agent appointed by the Fund; broker's commissions chargeable to
the Fund in connection with portfolio securities transactions to which the
Fund is a party; all taxes, including securities issuance and transfer
taxes, and corporate fees payable by the Fund to Federal, state or other
governmental agencies; the cost and expense of engraving or printing of
stock certificates representing shares of the Fund; all costs and expenses
in connection with the registration and maintenance of registration of the
Fund and its shares with the Securities and Exchange Commission and
various states and other jurisdictions (including filing fees and legal
fees and disbursements of counsel); the costs and expenses in connection
with the listing, and maintenance of such listing, of the Fund's shares on
any securities exchange; the costs and expenses of preparing (including
typesetting) prospectuses (including supplements thereto) of the Fund,
proxy statements and reports to shareholders; and of printing and
distributing such items to the Fund's shareholders, all expenses of
shareholders' and trustees' meetings; fees and travel expenses of trustees
or members of any advisory board or committee; all expenses incident to
the payment of any dividend, distribution, withdrawal or redemption,
whether in shares or in cash; charges and expenses of any outside service
used for pricing of the Fund's shares; charges and expenses of legal
counsel, including counsel to the trustees of the Trust who are not
interested persons (as defined in the Investment Company Act of 1940, as
amended) of the Fund, and of independent accountants, in connection with
any matter relating to the Fund; membership dues of industry associations;
interest payable on Fund borrowings; postage; insurance premiums on
property or personnel (including officers and trustees) of the Fund which
inure to its benefit; extraordinary expenses (including, but not limited
to, legal claims and liabilities and litigation costs and any
indemnification related thereto); and all other charges and costs of the
Fund's operation unless otherwise explicitly provided therein.
7. DELEGATION OF RESPONSIBILITIES. The Manager may, but should be under no duty
to, perform services on behalf of the Fund which are not required by this
Agreement upon the request of the Trust's Board of Trustees. Such services will
be performed on behalf of the Fund and the Manager's charge in rendering such
services may be billed monthly to the Fund, subject to examination by the Fund's
independent accountants. Payment or assumption by the Manager
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of any Fund expense that the Manager is not required to pay or assume under this
Agreement shall not relieve the Manager of any of its obligations to the Fund
nor obligate the Manager to pay or assume any similar Fund expense on any
subsequent occasions.
8. COMPENSATION. For the services to be rendered and the expenses assumed by the
Manager, the Fund shall pay to the Manager monthly compensation of the sum of
the amounts determined by applying the annual rates as set forth in Schedule A
hereto to the Fund's average daily net assets. Except as hereinafter set forth,
compensation under this Agreement shall be calculated and accrued daily and the
amounts of daily accruals shall be paid monthly. If this Agreement becomes
effective subsequent to the first day of a month or shall terminate before the
last day of a month, compensation for that part of the month this Agreement is
in effect shall be prorated in a manner consistent with the calculation of fees
set forth above. Payment of the Manager's compensation for the preceding month
shall be made as promptly as possible after completion of the computations
contemplated above.
9. NON-EXCLUSIVITY. The services of the Manager to the Fund are not to be deemed
to be exclusive, and the Manager shall be free to render investment management
and corporate administrative or other services to others (including other
investment companies) and to engage in other activities, so long as its services
under this Agreement are not impaired thereby. It is understood and agreed that
officers and directors of the Manager may serve as officers or directors of the
Manager to the extent permitted by law; and that the officers and directors of
the Manager are not prohibited from engaging in any other business activity or
from rendering services to any other person, or from serving as partners,
officers or directors of any other firm or corporation, including other
investment companies.
10. TERM AND APPROVAL. This Agreement shall become effective on the date first
written above, 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 the
Fund, shall have approved this Agreement. Unless terminated as provided herein,
the Agreement shall continue in full force and effect with respect to each
Series until the Reapproval Date set forth for such Series in Schedule A to this
Agreement, and shall continue from year to year thereafter, provided that such
continuance is specifically approved at least annually:
(a) (i) by the Trust's Board of Trustees or (ii) by the vote of a majority
of the Fund's outstanding voting securities (as defined in Section
2(a)(42) of the Investment Company Act of 1940, as amended), and
(b) by the affirmative vote of a majority of the trustees who are not
parties to this Agreement or interested persons of a party to this
Agreement (other than as Trust trustees), by votes cast in person at a
meeting specifically called for such purpose.
11. TERMINATION. This Agreement may be terminated at any time, without the
payment of any penalty, by vote of the Trust's Board of Trustees or by vote of a
majority of the Fund's outstanding securities (as defined in Section 2(a)(42) of
the Investment Company Act of 1940, as amended), or by the Manager, on sixty
(60) days' written notice to the other party. This
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Agreement shall automatically terminate in the event of its assignment, the term
"assignment" having the meaning defined in Section 2(a)(4) of the Investment
Company Act of 1940, as amended.
12. LIABILITY OF THE MANAGER. In the absence of willful misfeasance, bad faith
or gross negligence on the part of the Manager or any of its officers, directors
or employees or reckless disregard by the Manager of its duties under this
Agreement, the Manager shall not be liable to the Fund or to any shareholder of
the Fund for any act or omission in the course, or connected with, rendering
services hereunder or for any losses that may be sustained in the purchase,
holding or sale of any security.
13. NOTICES. Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that the address of the Manager and that of the
Fund for this purpose shall be 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000.
14. QUESTIONS OF INTERPRETATION. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the Investment Company Act of 1940, as amended, shall be
resolved by reference to such term or provision of the Act and to
interpretations thereof, if any, by the United States Courts or in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Securities and Exchange Commission issued pursuant to said Act. In
addition, where the effect of a requirement of the Investment Company Act of
1940, as amended, reflected in any provision of this Agreement is revised by
rule, regulation or order of the Securities and Exchange Commissions, such
provisions shall be deemed to incorporate the effect of such rule, regulation or
order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers on the day and year first above written.
ING EQUITY TRUST
By: __________________________________
Xxxxxx X. Naka
Senior Vice President
ING INVESTMENTS, LLC
By: __________________________________
Xxxxxxx X. Xxxxxx
Executive Vice President
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SCHEDULE A
WITH RESPECT TO THE
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 Financial 1.00% of first $30 million of assets August 20, 2002 September 1, 2003
Services Fund 0.75% of next $95 million of assets
0.70% of assets in excess of $125 million
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