Exhibit d(5)
SUB-ADVISORY AGREEMENT
ING VARIABLE PRODUCTS TRUST
AGREEMENT made this 3rd day of May 2004 between ING Investments,
LLC, an Arizona limited liability company (the "Adviser"), and Clarion CRA
Securities, L.P., a Delaware limited partnership (the "Sub-Adviser").
WHEREAS, ING Variable Products Trust (the "Fund") is registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), as an
open-end, management investment company;
WHEREAS, the Fund is authorized to issue separate series, each
series having its own investment objective or objectives, policies, and
limitations;
WHEREAS, the Fund may offer shares of additional series in the
future;
WHEREAS, pursuant to an Amended and Restated Investment Advisory
Agreement dated April 30, 2001, as amended (the "Advisory Agreement"), a copy of
which has been provided to the Sub-Adviser, the Fund has retained the Adviser to
render advisory and management services with respect to certain of the Fund's
series; and
WHEREAS, pursuant to authority granted to the Adviser in the
Advisory Agreement, the Adviser 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 Adviser.
NOW, THEREFORE, in consideration of the premises and the promises
and mutual covenants herein contained, it is agreed between the Adviser and the
Sub-Adviser as follows:
1. Appointment.
A. The Adviser hereby appoints the Sub-Adviser to act as the
investment adviser and manager to the series of the Fund set forth on SCHEDULE A
hereto (the "Series") for the periods and on the terms set forth in this
Agreement. The Sub-Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
B. In the event the Fund designates one or more series (other than
the Series) with respect to which the Adviser 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 Adviser 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 of
Trustees (the "Board") and the Adviser, 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'
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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 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 Fund'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 Adviser 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 Adviser'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 Adviser 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 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 Adviser 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 Adviser or to any agent of the Adviser designated by
the Adviser in writing.
The Sub-Adviser will make appropriate personnel available for
consultation for the purpose of reviewing with representatives of the Adviser
and/or the Board any proxy solicited by or with respect to the issuers of
securities in which assets of the Series are invested. Upon request, the
Sub-Adviser will submit a written voting recommendation to the Adviser 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 Fund's custodian and portfolio accounting
agent.
(IV) The Sub-Adviser will assist the custodian and portfolio
accounting agent for the Fund in determining or confirming, consistent with the
procedures and policies stated in the Registration Statement for the Fund or
adopted by the 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 Adviser, 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 Adviser) 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 Adviser
a written compliance checklist in a form provided by the Adviser for each month
by the 10th business day of the following month.
B. The Sub-Adviser will complete and deliver to the Adviser by the
10th business day of each month a written report on each Series of the Fund 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 each Series' portfolio and
the impact of key portfolio holdings and sector concentrations on the Series;
and
(III) Confirmation of the Fund's current investment objective
and Sub-Adviser's projected plan to realize the Fund's investment objectives.
C. The Sub-Adviser will contact Morningstar to clarify any style box
conflicts with the Fund's 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 Fund and the Adviser,
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 Fund) as are
necessary to assist the Fund and the Adviser 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 Fund are being conducted in a manner
consistent with applicable laws and regulations.
E. 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 Board and the Adviser 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, and determined in consultation
with the Adviser, 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, experience and
financial stability of the broker-dealer involved, the quality of the service,
the difficulty of execution, and the execution capabilities and operational
facilities of the firm involved, and the firm's risk in positioning a block of
securities. Accordingly, the price to a Series in any transaction may be less
favorable than that available from another broker-dealer if the difference is
reasonably justified, in the judgment of the Sub-Adviser in the exercise of its
fiduciary obligations to the Fund, by other aspects of the portfolio execution
services offered. Subject to such policies as the Fund's Board or Adviser 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 Adviser'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 Adviser 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
Adviser. 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
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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 therefore.
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 Adviser 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 Adviser or the
Fund shall be responsible for all the expenses of the Fund's operations.
6. Compensation. For the services provided to each Series, the Adviser
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 Advisory Agreement, the Adviser 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 Adviser; provided, however, that if the Fund fails to pay the
Adviser all or a portion of the management fee under said Advisory 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 Fund any rights it may have as a third-party
beneficiary under the Advisory Agreement and the Adviser 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 Adviser at its principal office for prior review and approval by the
Adviser all written and/or printed materials, including but not limited to,
PowerPoint(R) or slide presentations, news releases, advertisements,
brochures, fact sheets and other promotional, informational or marketing
materials ("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 Adviser 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
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 Adviser 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 Adviser 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
Adviser 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.
8. Compliance.
A. The Sub-Adviser agrees to use reasonable compliance techniques as
the Adviser or the Board may adopt, including any written compliance procedures.
B. The Sub-Adviser agrees that it shall promptly notify the Adviser
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 Adviser and the Fund
promptly of any material fact known to the Sub-Adviser respecting or relating to
the Sub-Adviser that is not contained in the Registration Statement or
prospectus for the Fund (which describes the Series), or any amendment or
supplement thereto, or if any statement contained therein that becomes untrue in
any material respect.
C. The Adviser agrees that it shall promptly notify the Sub-Adviser
(1) in the event that the SEC has censured the Adviser or the Fund; placed
limitations upon either of their activities, functions, or operations; suspended
or revoked the Adviser'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 Fund and further agrees to
surrender promptly to the Fund any of such records upon the Fund's or the
Adviser'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
Fund. Subject to the foregoing, the Sub-Adviser shall treat as confidential all
information pertaining to the Fund and actions of the Fund, the Adviser and the
Sub-Adviser, and the Adviser shall treat as confidential and use only in
connection with the Series all information furnished to the Fund or the Adviser
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 Adviser, or if
available from a source other than the Adviser, Sub-Adviser or this Fund.
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 Adviser agrees that
neither the Adviser, nor affiliated persons of the Adviser, shall give any
information or make any representations or statements in connection with the
sale of shares of the Series concerning the Sub-Adviser or the Series other than
the information or representations contained in the Registration Statement,
prospectus, or statement of additional information for the Fund's shares, as
they may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
13. Control. Notwithstanding any other provision of the Agreement, it is
understood and agreed that the Fund shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement and has reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
14. Liability. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Adviser 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.
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15. Indemnification.
A. The Adviser 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 Adviser's responsibilities to the Fund which (1) may be based upon the
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 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 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 Adviser or the Fund or to
any affiliated person of the Adviser 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 Adviser, any affiliated person of the
Adviser, and any controlling person of the Adviser (all of such persons being
referred to as "Adviser Indemnified Persons") against any and all losses,
claims, damages, liabilities, or litigation (including legal and other expenses)
to which a Adviser Indemnified Person may become subject under the 1933 Act,
1940 Act, the Advisers Act, under any other statute, at common law or otherwise,
arising out of the Sub-Adviser's responsibilities as Sub-Adviser of the Series
which (1) may be based upon the Sub-Adviser's negligence, willful misfeasance,
or bad faith in the performance of its duties (which could include a negligent
action or a negligent omission to act), or by reason of the Sub-Adviser's
reckless disregard of its obligations and duties under this Agreement, or (2)
may be based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or prospectus covering the shares
of the Fund or any Series, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact known or which
should have been known to the Sub-Adviser and was required to be stated therein
or necessary to make the statements therein not misleading, if such a statement
or omission was made in reliance upon information furnished to the Adviser, the
Fund, or any affiliated person of the Adviser 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 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, negligence in the performance of
its duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
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C. The Adviser 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
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 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 Adviser of any such claim shall not relieve
the Adviser from any liability which it may have to the Sub-Adviser Indemnified
Person against whom such action is brought except to the extent the Adviser 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 Adviser will
be entitled to participate, at its own expense, in the defense thereof or, after
notice to the Sub-Adviser Indemnified Person, to assume the defense thereof,
with counsel satisfactory to the Sub-Adviser Indemnified Person. If the Adviser
assumes the defense of any such action and the selection of counsel by the
Adviser to represent the Adviser 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 Adviser will, at its own
expense, assume the defense with counsel to the Adviser and, also at its own
expense, with separate counsel to the Sub-Adviser Indemnified Person, which
counsel shall be satisfactory to the Adviser 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 Adviser 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 Adviser 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 Adviser Indemnified Person
unless such Adviser 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
Adviser Indemnified Person (or after such Adviser 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 Adviser 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 Adviser Indemnified Person, the Sub-Adviser will be entitled to
participate, at its own expense, in the defense thereof or, after notice to the
Adviser Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Adviser 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 Adviser Indemnified Person would result
in a conflict of interests and therefore, would not, in the reasonable judgment
of the Adviser Indemnified Person, adequately represent the interests of the
Adviser 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 Adviser Indemnified Person, which counsel shall be
satisfactory to the Sub-Adviser and to the Adviser Indemnified Person. The
Adviser
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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 Adviser
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Adviser 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 Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Adviser Indemnified Person.
16. Duration and Termination.
A. This Agreement shall become effective on the date first indicated
above, subject to the condition that the Fund's Board, including a majority of
those Trustees who are not interested persons (as such term is defined in the
0000 Xxx) of the Adviser 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 until SEPTEMBER 1,
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 (1) 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 (2) the vote of a majority of those Trustees who are not parties to this
Agreement or interested persons (as such term is defined in the 0000 Xxx) of any
such party to this Agreement cast in person at a meeting called for the purpose
of voting on such approval. However, any approval of this Agreement by the
holders of a majority of the outstanding shares (as defined in the 0000 Xxx) of
a Series shall be effective to continue this Agreement with respect to such
Series notwithstanding (1) that this Agreement has not been approved by the
holders of a majority of the outstanding shares of any other Series, or (2) 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.
B. Notwithstanding the foregoing, this Agreement may be terminated
with respect to any Series covered by this Agreement: (1) by the Adviser at any
time, upon 60 days' written notice to the Sub-Adviser and the Fund, (2) 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 each Series, upon 60 days'
written notice to the Adviser and the Sub-Adviser, or (3) by the Sub-Adviser
upon 3 months' written notice unless the Fund or the Adviser 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 Adviser not to exceed 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 Adviser and the Fund, in the event
either the Sub-Adviser (acting in good faith) or the Adviser 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 Adviser 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 Adviser or the Fund as required by the terms of this agreement.
C. 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
Adviser or the Fund, free from any
10
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 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.
17. 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 Variable Products Trust
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx., Chief Counsel
If to the Adviser:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to the Sub-Adviser:
Clarion CRA Securities, L.P.
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Vice President
18. 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
19. 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
11
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.
B. The Adviser and the Sub-Adviser acknowledge that the Fund enjoys
the rights of a third-party beneficiary under this Agreement, and the Adviser
acknowledges that the Sub-Adviser enjoys the rights of a third party beneficiary
under the Advisory 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 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 Adviser, or constituting the Adviser 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
CLARION CRA SECURITIES, L.P.
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
Title: Senior Vice President
12
SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
CLARION CRA SECURITIES, L.P.
ANNUAL SUB-ADVISER FEE
SERIES (AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
------ ---------------------------------------------
ING VP Real Estate Portfolio 0.40% of the first $100 million of assets
0.35% of the assets in excess of $100 million
13
