Exhibit 77Q1(e)(2)
FORM OF SUB-ADVISORY AGREEMENT
AGREEMENT made this ____ day of ___________2003 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 Equity Trust and ING Variable Products Trust (each a "Trust,"
collectively the "Trusts") are registered under the Investment Company Act of
1940, as amended (the "1940 Act"), each as an open-end, management investment
company; and
WHEREAS, the Trusts are authorized to issue separate series, each series
having its own investment objective or objectives, policies, and limitations;
and
WHEREAS, the Trusts may offer shares of additional series in the future;
and
WHEREAS, pursuant to Investment Management Agreements, dated September 23,
2002 and April 30, 2001, as amended, respectively (the "Management Agreements"),
copies of which have been provided to the Sub-Adviser, the Trusts have retained
the Manager to render advisory and management services with respect to certain
of the Trusts' series; and
WHEREAS, pursuant to authority granted to the Manager in the Management
Agreements, the Manager wishes to retain the Sub-Adviser to furnish investment
advisory services to one or more of the series of the Trusts, and the
Sub-Adviser is willing to furnish such services to the Trusts and the Manager;
and
WHEREAS, the Trusts' Boards of Trustees (each a "Board," collectively, the
"Boards") have 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 Trusts (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 a Trust designates one or more series (other than the Series)
with respect to which the Manager wishes to retain the Sub-Adviser to render
investment advisory services hereunder, it shall notify the Sub-Adviser in
writing. If the Sub-Adviser is willing to render such services, it shall notify
the Manager in writing, whereupon such series shall become a Series hereunder,
and be subject to this Agreement.
2. SUB-ADVISER DUTIES. Subject to the supervision of the Trusts' Boards 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,
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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 Trusts' Registration
Statements 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 Trusts' Boards of
Trustees of which the Sub-Adviser has been sent a copy, and the provisions of
the Registration Statements of the Trusts filed under the Securities Act of 1933
(the "1933 Act") and the 1940 Act, as supplemented or amended, of which the
Sub-Adviser has received a copy, and with the Manager's portfolio manager
operating policies and procedures as in effect on the date hereof, as such
policies and procedures may be revised or amended by the Manager and agreed to
by the Sub-Adviser. In carrying out its duties under the Sub-Adviser Agreement,
the Sub-Adviser will comply with the following policies and procedures:
(i) The Sub-Adviser will manage each Series so that it meets the
diversification requirements of Section 851 of the Internal Revenue Code.
(ii) The Sub-Adviser will vote all proxies solicited by or with respect to
the issuers of securities which assets of the Series are invested consistent
with its proxy voting guidelines and based upon the best interests of the
Series. The Sub-Adviser will maintain appropriate records detailing its voting
of proxies on behalf of the Trusts and will provide to each Trust at least
quarterly a report setting forth the proposals voted on and how its Series'
shares were voted since the prior report, including the name of the
corresponding issuers.
(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 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
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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 Statements for the Trusts or
adopted by the Boards of Trustees, the value of any portfolio securities or
other assets of the Series for which the custodian and portfolio accounting
agent seeks assistance from or identifies for review by the Sub-Adviser. The
parties acknowledge that the Sub-Adviser is not a custodian of the Series'
assets and will not take possession or custody of such assets.
(v) The Sub-Adviser will provide the Manager, no later than the 12th
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
12th business day of the following month.
(b) The Sub-Adviser will make available to the Trusts 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 Trusts' Boards of Trustees
for consideration at meetings of the Boards of Trustees on the investment
program for each Series and the issuers and securities represented in each
Series' portfolio, and will furnish the Trusts' Boards of Trustees with respect
to each Series such periodic and special reports as the Trustees and the Manager
may reasonably request.
3. BROKER-DEALER SELECTION. The Sub-Adviser is authorized to make decisions
to buy and sell securities and other investments for each Series' portfolio,
broker-dealer selection, and negotiation of brokerage commission rates in
effecting a security transaction. The Sub-Adviser's primary consideration in
effecting a security transaction will be to obtain the best execution for the
Series, taking into account the factors specified in the prospectus and/or
statement of additional information for each Trust, or determined in
consultation with the Manager, which may include price (including the applicable
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brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation, the
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firm involved, and the firm's risk in positioning
a block of securities. Accordingly, the price to a Series in any transaction may
be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Sub-Adviser in the
exercise of its fiduciary obligations to the Trusts, on behalf of a Series, by
other aspects of the portfolio execution services offered. Subject to such
policies as the Trusts' Boards of Trustees or Manager may determine and
consistent with Section 28(e) of the Securities Exchange Act of 1934, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused a Series to pay a broker-dealer for effecting a portfolio investment
transaction in excess of the amount of commission another broker-dealer would
have charged for effecting that transaction, if the Sub-Adviser determines in
good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research services provided by such broker-dealer,
viewed in terms of either that particular transaction or the Sub-Adviser's or
the Manager's overall responsibilities with respect to the Series and to their
respective other clients as to which they exercise investment discretion. 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 Trusts' Boards of
Trustees 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 each Trust
filed with the SEC that contains disclosure about the Sub-Adviser, and
represents and warrants that, with respect to the disclosure about the
Sub-Adviser or information relating, directly or indirectly, to the Sub-Adviser,
such Registration Statements contain, 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.
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5. EXPENSES. During the term of this Agreement, the Sub-Adviser will pay
all expenses incurred by it and its staff and for their activities in connection
with its portfolio management duties under this Agreement. The Manager or the
Trusts 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 a Trust fails to pay the Manager all or a portion of
the management fee for a Series under said Management Agreement when due, and
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 Trust any rights it
may have as a third-party beneficiary under the Management Agreement and the
Manager will take all steps appropriate under the circumstances to collect the
amount due from the Trust.
7. MARKETING MATERIALS.
(a) During the term of this Agreement, the Sub-Adviser agrees to furnish
the Manager at its principal office for prior review and approval by the Manager
all written and/or printed materials, including but not limited to, 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 five 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 five business days (or
such other period as may be mutually agreed) after receipt thereof. The
Sub-Adviser's right to object to such materials is limited to the portions of
such materials that expressly relate to the Sub-Adviser, 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
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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,
including any written compliance procedures.
(b) The Sub-Adviser agrees that it shall promptly notify the Manager and
the Trusts (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
Trusts 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 a Trust (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 a Trust; 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.
(d) The Sub-Adviser is prohibited from consulting with other sub-advisers
to the Series or other sub-advisers to a series under common control with the
Series concerning a Series' transactions in securities or other assets.
9. BOOKS AND RECORDS. The Sub-Adviser hereby agrees that all records which
it maintains for a Series are the property of the respective Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
or the Manager's request in compliance with the requirements of Rule 31a-3 under
the 1940 Act, although the Sub-Adviser may, at its own expense, make and retain
a copy of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by 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 a
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Trust. Subject to the foregoing, the Sub-Adviser shall treat as confidential all
information pertaining to the Trusts and actions of the Trusts, 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 a Trust or the Manager
by the Sub-Adviser, in connection with its duties under the agreement except
that the aforesaid information need not be treated as confidential if required
to be disclosed under applicable law, if generally available to the public
through means other than by disclosure by the Sub-Adviser or the Manager, or if
available from a source other than the Manager, Sub-Adviser or Trusts.
11. REPRESENTATIONS RESPECTING SUB-ADVISER. The Manager agrees that neither
the Manager, nor affiliated persons of the Manager, shall give any information
or make any representations or statements in connection with the sale of shares
of the Series concerning the Sub-Adviser or the Series other than the
information or representations contained in the Registration Statement,
prospectus, or statement of additional information for a Trust's shares, as they
may be amended or supplemented from time to time, or in reports or proxy
statements for a Trust, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
12. CONTROL. Notwithstanding any other provision of the Agreement, it is
understood and agreed that the Trusts 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.
13. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Manager agrees that the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act, controls the Sub-Adviser
(1) shall bear no responsibility and shall not be subject to any liability for
any act or omission respecting any series of a Trust that is not a Series
hereunder, and (2) shall not be liable for, or subject to any damages, expenses,
or losses in connection with, any act or omission connected with or arising out
of any services rendered under this Agreement, except by reason of willful
misfeasance, bad faith, or gross negligence in the performance of the
Sub-Adviser's duties, or by reason of reckless disregard of the Sub-Adviser's
obligations and duties under this Agreement.
14. INDEMNIFICATION.
(a) The Manager agrees to indemnify and hold harmless the Sub-Adviser, any
affiliated person of the Sub-Adviser, and each person, if any, who, within the
meaning of Section 15 of the 1933 Act, controls ("controlling person") the
Sub-Adviser (all of such persons being referred to as "Sub-Adviser Indemnified
Persons") against any and all losses, claims, damages, liabilities, or
litigation (including legal and other expenses) to which a Sub-Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of the Manager's responsibilities to a Trust which (1) may be based upon the
Manager's negligence, willful misfeasance, or bad faith in the performance of
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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 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 a Trust or any Series, or any
amendment thereof or any supplement thereto, or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was made in reliance upon information furnished to the Manager or a Trust or to
any affiliated person of the Manager by a Sub-Adviser Indemnified Person;
provided however, that in no case shall the indemnity in favor of the
Sub-Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of its
duties, or by reason of its reckless disregard of obligations and duties under
this Agreement.
(b) Notwithstanding Section 13 of this Agreement, the Sub-Adviser agrees to
indemnify and hold harmless the Manager, any affiliated person of the Manager,
and any controlling person of the Manager (all of such persons being referred to
as "Manager Indemnified Persons") against any and all losses, claims, damages,
liabilities, or litigation (including legal and other expenses) to which a
Manager Indemnified Person may become subject under the 1933 Act, 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of the Sub-Adviser's responsibilities as Sub-Adviser of 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 a Trust or any Series, or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact known or which should have been known to the Sub-Adviser
and was required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made in reliance
upon information furnished to the Manager, a Trust, or any affiliated person of
the Manager or Trust by the Sub-Adviser or any affiliated person of the
Sub-Adviser; provided, however, that in no case shall the indemnity in favor of
a Manager Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(c) The Manager shall not be liable under Paragraph (a) of this Section 14
with respect to any claim made against a Sub-Adviser Indemnified Person unless
such Sub-Adviser Indemnified Person shall have notified the Manager in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Sub-Adviser Indemnified Person (or after such Sub-Adviser Indemnified Person
shall have received notice of such service on any designated agent), but failure
to notify the Manager of any such claim shall not relieve the Manager from any
liability which it may have to the Sub-Adviser Indemnified Person against whom
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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, to assume the defense thereof, with counsel
satisfactory to the Sub-Adviser Indemnified Person. If the Manager assumes the
defense of any such action and the selection of counsel by the Manager to
represent the Manager and the Sub-Adviser Indemnified Person would result in a
conflict of interests and therefore, would not, in the reasonable judgment of
the Sub-Adviser Indemnified Person, adequately represent the interests of the
Sub-Adviser Indemnified Person, the Manager will, at its own expense, assume the
defense with counsel to the Manager and, also at its own expense, with separate
counsel to the Sub-Adviser Indemnified Person, which counsel shall be
satisfactory to the Manager and to the Sub-Adviser Indemnified Person. The
Sub-Adviser Indemnified Person shall bear the fees and expenses of any
additional counsel retained by it, and the Manager shall not be liable to the
Sub-Adviser Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Manager shall not have the right to compromise on or
settle the litigation without the prior written consent of the Sub-Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Sub-Adviser Indemnified Person.
(d) The Sub-Adviser shall not be liable under Paragraph (b) of this Section
14 with respect to any claim made against a Manager Indemnified Person unless
such Manager Indemnified Person shall have notified the Sub-Adviser in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Manager
Indemnified Person (or after such Manager Indemnified Person shall have received
notice of such service on any designated agent), but failure to notify the
Sub-Adviser of any such claim shall not relieve the Sub-Adviser from any
liability which it may have to the Manager Indemnified Person against whom such
action is brought except to the extent the Sub-Adviser is prejudiced by the
failure or delay in giving such notice. In case any such action is brought
against the Manager Indemnified Person, the Sub-Adviser will be entitled to
participate, at its own expense, in the defense thereof or, after notice to the
Manager Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person. If the Sub-Adviser assumes the
defense of any such action and the selection of counsel by the Sub-Adviser to
represent both the Sub-Adviser and the Manager Indemnified Person would result
in a conflict of interests and therefore, would not, in the reasonable judgment
of the Manager Indemnified Person, adequately represent the interests of the
Manager Indemnified Person, the Sub-Adviser will, at its own expense, assume the
defense with counsel to the Sub-Adviser and, also at its own expense, with
separate counsel to the Manager Indemnified Person, which counsel shall be
satisfactory to the Sub-Adviser and to the Manager Indemnified Person. The
Manager Indemnified Person shall bear the fees and expenses of any additional
counsel retained by it, and the Sub-Adviser shall not be liable to the Manager
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Manager Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Sub-Adviser shall not have the right to compromise on or
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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.
15. DURATION AND TERMINATION.
(a) This Agreement shall become effective on the date first indicated
above, subject to the condition that each Trust's Board, including a majority of
those Trustees 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 the Reapproval Date set forth for such Series on SCHEDULE A,
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 each Trust, 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 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 (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 each Trust, unless such approval shall be required by any
other applicable law or otherwise. Notwithstanding the foregoing, this Agreement
may be terminated with respect to any Series covered by this Agreement: (a) by
the Manager at any time, upon sixty (60) days' written notice to the Sub-Adviser
and the Trust, (b) at any time without payment of any penalty by a Trust, by the
Trust's Board or a majority of the outstanding voting securities of a Series,
upon sixty (60) days' written notice to the Manager and the Sub-Adviser, or (c)
by the Sub-Adviser upon three (3) months' written notice unless a Trust or the
Manager requests additional time to find a replacement for the Sub-Adviser, in
which case the Sub-Adviser shall allow the additional time requested by the
Trust or Manager not to exceed three (3) additional months beyond the initial
three-month notice period; provided, however, that the Sub-Adviser may terminate
this Agreement at any time without penalty, effective upon written notice to the
Manager and the Trust, in the event either the Sub-Adviser (acting in good
faith) or the Manager ceases to be registered as an investment adviser under the
Advisers Act or otherwise becomes legally incapable of providing investment
management services pursuant to its respective contract with the Trust, or in
the event the Manager becomes bankrupt or otherwise incapable of carrying out
its obligations under this Agreement, or in the event that the Sub-Adviser does
not receive compensation for its services from the Manager or the Trust as
required by the terms of this Agreement.
In the event of termination for any reason, all records of each Series for
which the Agreement is terminated shall promptly be returned to the Manager or
the Trust, free from any claim or retention of rights in such record by the
Sub-Adviser, although the Sub-Adviser may, at its own expense, make and retain a
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copy of such records. This Agreement shall automatically terminate in the event
of its assignment (as such term is described in the 1940 Act). In the event this
Agreement is terminated or is not approved in the manner described above, the
Sections or Paragraphs numbered 9, 10, 11, 12, 13 and 14 of this Agreement shall
remain in effect, as well as any applicable provision of this Section numbered
15 and, to the extent that only amounts are owed to the Sub-Adviser as
compensation for services rendered while the agreement was in effect, Section 6.
(b) Notices. Any notice must be in writing and shall be sufficiently given
(1) when delivered in person, (2) when dispatched by telegram or electronic
facsimile transfer (confirmed in writing by postage prepaid first class air mail
simultaneously dispatched), (3) when sent by internationally recognized
overnight courier service (with receipt confirmed by such overnight courier
service), or (4) when sent by registered or certified mail, to the other party
at the address of such party set forth below or at such other address as such
party may from time to time specify in writing to the other party.
If to a Trust:
ING Equity Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
ING Variable Products Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
If to the Sub-Adviser:
Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Legal Services
16. 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 Trustees of each Trust, including a majority of the Trustees of the
Trusts 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.
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17. 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 0000 Xxx.
(b) The Manager and the Sub-Adviser acknowledge that each Trust enjoys the
rights of a third-party beneficiary under this Agreement, and the Manager
acknowledges that the Sub-Adviser enjoys the rights of a third-party beneficiary
under the Management Agreements.
(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 15 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.
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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:
------------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
WELLINGTON MANAGEMENT COMPANY, LLP
By:
------------------------------------
Title:
---------------------------------
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SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
DATED: _________________
BETWEEN
ING INVESTMENTS, LLC
AND
WELLINGTON MANAGEMENT COMPANY, LLP
ANNUAL
SUB-ADVISER FEE*
(AS A PERCENTAGE OF AVERAGE LAST CONTINUED/
SERIES DAILY NET ASSETS) APPROVED BY BOARD REAPPROVAL DATE
------ ----------------- ----------------- ---------------
ING LargeCap
Growth Fund 0.45% - First $100 million
0.30% - Next $1.4 billion February 25, 2003 September 1, 2004
ING VP LargeCap 0.25% - Over $1.5 billion
Growth Portfolio
----------
* For purposes of calculating fees under this Agreement, the assets of the
Series shall be aggregated with the portion of the assets of any other
affiliated accounts of the Manager managed by the Sub-Adviser in a similar
investment mandate (together, the "Aggregated Assets"). The Aggregated
Assets will be applied to the above schedule and the resulting fee shall be
prorated back to the Series and other affiliated accounts accordingly.
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