Exhibit d(1)
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made the 23rd day of September, 2002, is hereby amended and
restated this 1st day of February 2005 between ING Mutual Funds, a Delaware
business trust (the "Trust"), and ING Investments, LLC, an Arizona Limited
Liability Company (the "Manager") (the "Agreement").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust may offer shares of additional series in the future; and
WHEREAS, the Trust desires to avail itself of the services of the Manager
for the provision of advisory and management services for the Trust; and
WHEREAS, the Manager is willing to render such services to the Trust.
NOW, THEREFORE, in consideration of the premises, the promises and mutual
covenants herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Manager, subject to the
direction of the Board of Trustees, for the period and on the terms set forth in
this Agreement, to provide advisory, management, and other services, as
described herein, with respect to each series of the Trust set forth in SCHEDULE
A hereto (individually and collectively referred to herein as "Series"), as such
schedule may be amended from time to time. The Manager accepts such appointment
and agrees to render the services herein set forth for the compensation herein
provided.
In the event the Trust establishes and designates additional series with
respect to which it desires to retain the Manager to render advisory services
hereunder, it shall notify the Manager in writing. If the Manager is willing to
render such services, it shall notify the Trust in writing, whereupon such
additional series shall become a Series hereunder.
With respect to those Series that have obtained shareholder approval,
subject to the approval of the Board of Trustees of the Trust, the Manager is
authorized to enter into sub-advisory agreements with other registered
investment advisers to serve as investment sub-advisors, whether or not
affiliated with the Manager (each a "Sub-Adviser"). The Manager will continue to
have responsibility for all services furnished pursuant to any sub-advisory
agreement (each a "Sub-Advisory Agreement"). The Trust and Manager understand
and agree that the Manager may manage each Series in a "manager-of-managers"
style with either a single or multiple sub-advisers, which contemplates that the
Manager will, among other things and pursuant to an Order issued by the
Securities and Exchange Commission (the "SEC"): (i) continually evaluate the
performance of the Sub-Advisers to the Trust; and (ii) periodically make
recommendations to the Trust's Board of Trustees regarding the results of its
evaluation and
of the Trust, a sub-adviser's services may be terminated or modified and that
the Manager may appoint a new Sub-Adviser for a Series, subject to an applicable
SEC Order.
2. Services of the Manager. The Manager represents and warrants that it
is registered as an investment adviser under the Investment Advisers Act of 1940
and will maintain such registration for so long as required by applicable law.
Subject to the general supervision of the Board of Trustees of the Trust, the
Manager shall provide the following advisory, management, and other services
with respect to the Series:
(a) Provide general investment advice and guidance with respect to
the Series and provide advice and guidance to the Trust's Trustees, and oversee
the management of the investments of the Series and the composition of each
Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with each Series'
investment objective or objectives and policies as stated in the Trust's current
registration statement, which management may be provided by others selected by
the Manager and approved by the Board of Trustees as provided below or directly
by the Manager as provided in Section 3 of this Agreement;
(b) In the event that the Manager wishes to select others to render
investment management services, the Manager shall analyze, select and recommend
for consideration and approval by the Trust's Board of Trustees investment
advisory firms (however organized) to provide investment advice to one or more
of the Series, and, at the expense of the Manager, engage (which engagement may
also be by the Trust) such investment advisory firms to render investment advice
and manage the investments of such Series and the composition of each such
Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with the Series'
investment objective or objectives and policies as stated in the Trust's current
registration statement;
(c) Periodically monitor and evaluate the performance of the
Sub-Advisers with respect to the investment objectives and policies of the
Series;
(d) Monitor the Sub-Advisers for compliance with the investment
objective or objectives, policies and restrictions of each Series, the 1940 Act,
Subchapter M of the Internal Revenue Code, and if applicable, regulations under
such provisions, and other applicable law;
(e) If appropriate, analyze and recommend for consideration by the
Trust's Board of Trustees termination of a contract with a Sub-Adviser under
which the Sub-Adviser provides investment advisory services to one or more of
the Series;
(f) Supervise Sub-Advisers with respect to the services that such
Sub-Advisers provide under respective Sub-Advisory Agreements;
(g) Render to the Board of Trustees of the Trust such periodic and
special reports as the Board may reasonably request; and
(h) Make available its officers and employees to the Board of
Trustees and officers of the Trust for consultation and discussions regarding
the administration and management of the Series and services provided to the
Trust under this Agreement.
2
3. Investment Management Authority. In the event the Manager wishes to
render investment management services directly to a Series, then with respect to
any such Series, the Manager, subject to the supervision of the Trust's Board of
Trustees, will provide a continuous investment program for the Series'
portfolio and determine the composition of the assets of the Series' portfolio,
including determination of the purchase, retention, or sale of the securities,
cash, and other investments contained in the portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Series' assets by determining the securities and
other investments that shall be purchased, entered into, sold, closed, offered
to the public, 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, and the Manager
is hereby authorized to execute and perform such services on behalf of the
Series. To the extent permitted by the investment policies of the Series, the
Manager 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 such Series. The Manager will provide the services under
this Agreement in accordance with the Series' investment objective or
objectives, policies, and restrictions as stated in the Trust's Registration
Statement filed with the SEC, as amended. Furthermore:
(a) The Manager will manage the Series so that each will qualify as a
regulated investment company under Subchapter M of the Internal Revenue Code. In
managing the Series in accordance with these requirements, the Manager shall be
entitled to receive and act upon advice of counsel to the Series or counsel to
the Manager.
(b) The Manager 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 Trust's Board of
Trustees, and the provisions of the Registration Statement of the Trust under
the Securities Act of 1933 and the 1940 Act, as supplemented or amended.
(c) On occasions when the Manager deems the purchase or sale of a security
to be in the best interest of the Series as well as any other investment
advisory clients, the Manager may, to the extent permitted by applicable laws
and regulations and any applicable procedures adopted by the Trust's Board of
Trustees, but shall not be obligated to, aggregate the securities to be so sold
or purchased with those of its other clients where such aggregation is not
inconsistent with the policies set forth in the Registration Statement. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Manager in a manner
that is fair and equitable in the judgment of the Manager in the exercise of its
fiduciary obligations to the Trust on behalf of the Series and to such other
clients.
(d) In connection with the purchase and sale of securities of the Series,
the Manager will arrange for the transmission to the custodian for the Series on
a daily basis, of 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 to perform its administrative and
recordkeeping responsibilities with respect to the Series. With respect to
portfolio securities to
3
be purchased or sold through the Depository Trust Company, the Manager will
arrange for the prompt transmission of the confirmation of such trades to the
Series' custodian.
(e) The Manager will assist the custodian or portfolio accounting
agent for the Series in determining, consistent with the procedures and policies
stated in the Registration Statement for the Trust and any applicable procedures
adopted by the Trust's Board of Trustees, the value of any portfolio securities
or other assets of the Series for which the custodian or portfolio accounting
agent seeks assistance or review from the Manager.
(f) The Manager will make available to the Trust, promptly upon
request, any of the Series' or the Managers' investment records and ledgers as
are necessary to assist the Series to comply with requirements of the 1940 Act,
as well as other applicable laws. The Manager will furnish to regulatory
authorities having the requisite authority any information or reports in
connection with its services 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.
(g) The Manager will regularly report to the Trust's Board of Trustees
on the investment program for the Series and the issuers and securities
represented in the Series' portfolio, and will furnish the Trust's Board of
Trustees with respect to the Series such periodic and special reports as the
Trustees may reasonably request.
(h) In connection with its responsibilities under this Section 3, the
Manager is responsible for decisions to buy and sell securities and other
investments for the Series' portfolio, broker-dealer selection, and negotiation
of brokerage commission rates. The Manager'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 Trust, 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, execution capabilities
and operational facilities of the firms involved, and the firm's risk in
positioning a block of securities. Accordingly, the price to the 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 Manager in the
exercise of its fiduciary obligations to the Trust on behalf of the Series, by
other aspects of the portfolio execution services offered. Subject to such
policies as the Board of Trustees may determine and consistent with Section
28(e) of the Securities Exchange Act of 1934, as amended, 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 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 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-dealer, viewed in terms of either that
particular transaction or the Manager's overall responsibilities with respect to
the Series and to its other clients as to which it exercises investment
discretion. To the extent consistent with these standards and in accordance with
Section 11(a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T)
thereunder, the Manager is further authorized to
4
allocate the orders placed by it on behalf of the Series to the Manager 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 Manager or an affiliate of the Manager. Such
allocation shall be in such amounts and proportions as the Manager shall
determine consistent with the above standards, and the Manager will report on
said allocation regularly to the Board of Trustees of the Trust indicating the
broker-dealers to which such allocations have been made and the basis therefor.
4. Conformity with Applicable Law. The Manager, in the performance of its
duties and obligations under this Agreement, shall act in conformity with the
Registration Statement of the Trust and with the instructions and directions of
the Board of Trustees of the Trust and will conform to, and comply with, the
requirements of the 1940 Act and all other applicable federal and state laws and
regulations.
5. Exclusivity. The services of the Manager to the Series under this
Agreement are not to be deemed exclusive, and the Manager, or any affiliate
thereof, shall be free to render similar services to other investment companies
and other clients (whether or not their investment objectives and policies are
similar to those of any of the Series) and to engage in other activities, so
long as its services hereunder are not impaired thereby.
6. Documents. The Trust has delivered properly certified or authenticated
copies of each of the following documents to the Manager and will deliver to it
all future amendments and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust
authorizing the appointment of the Manager and approving the form of this
Agreement;
(b) the Registration Statement as filed with the SEC and any
amendments thereto; and
(c) exhibits, powers of attorney, certificates and any and all other
documents relating to or filed in connection with the Registration Statement
described above.
7. Records. The Manager agrees to maintain and to preserve for the
periods prescribed under the 1940 Act any such records as are required to be
maintained by the Trust with respect to the Series by the 1940 Act. The Manager
further agrees that all records of the Series are the property of the Trust and,
to the extent held by the Manager, it will promptly surrender any of such
records upon request.
8. Expenses. During the term of this Agreement, the Manager will pay all
expenses incurred by it in connection with its activities under this Agreement,
except such expenses as are assumed by the Trust under this Agreement and such
expenses as are assumed by a Sub-Adviser under its Sub-Advisory Agreement. The
Manager further agrees to pay all fees payable to the Sub-Advisers, executive
salaries and expenses of the Trustees of the Trust who are employees of the
Manager of its affiliates, and office rent of the Trust. The Trust shall be
responsible for all of the other expenses of its operations, including, without
limitation, the management fee payable hereunder; brokerage commissions;
interest; legal fees and expenses of attorneys; fees of auditors, transfer
agents and dividend disbursing agents, custodians and shareholder servicing
5
agents; the expense of obtaining quotations for calculating each Series' net
asset value; taxes, if any, and the preparation of the Series' tax returns; cost
of stock certificates and any other expenses (including clerical expenses) of
issue, sale, repurchase or redemption of shares; expenses of registering and
qualifying shares of the Series under federal and state laws and regulations
(including the salary of employees of the Manager engaged in the registering and
qualifying of shares of the Series under federal and state laws and regulations
or a pro-rata portion of the salary of employees to the extent so engaged);
salaries of personnel involved in placing orders for the execution of the
Series' portfolio transactions; expenses of disposition or offering any of the
portfolio securities held by a Series; expenses of printing and distributing
reports, notices and proxy materials to existing shareholders; expenses of
printing and filing reports and other documents filed with governmental
agencies; expenses in connection with shareholder and Trustee meetings; expenses
of printing and distributing prospectuses and statements of additional
information to existing shareholders; fees and expenses of Trustees of the Trust
who are not employees of the Manager or any Sub-Adviser, or their affiliates;
Board approved trade association dues; insurance premiums; and extraordinary
expenses such as litigation expenses. To the extent the Manager incurs any costs
or performs any services which are an obligation of the Trust, as set forth
herein, the Trust shall promptly reimburse the Manager for such costs and
expenses. To the extent the services for which the Trust is obligated to pay are
performed by the Manager, the Manager shall be entitled to recover from the
Trust only to the extent of its costs for such services.
9. COMPENSATION. For the services provided by the Manager to a Series
pursuant to this Agreement, the Trust will pay to the Manager an annual fee
equal to the amount specified for such Series in SCHEDULE A hereto, payable
monthly in arrears. Payment of the fees shall be in addition to any amount paid
to the Manager for the salary of its employees for performing services which are
an obligation of the Trust as provided in Section 8. The fee will be
appropriately pro-rated to reflect any portion of a calendar month that this
Agreement is not in effect between us.
10. LIABILITY OF THE MANAGER. The Manager may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
members, officers, Trustees, employees, or agents shall be subject to, and the
Trust will indemnify such persons from and against, any liability for, or any
damages, expenses, or losses incurred 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 Manager's duties, or by reason of reckless disregard of the
Manager's obligations and duties under this Agreement. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
members, officers, Trustees, employees, or agents shall be subject to, and the
Trust will indemnify such persons from and against, any liability for, or any
damages, expenses, or losses incurred in connection with, any act or omission by
a Sub-Adviser or any of the Sub-Adviser's stockholders or partners, officers,
Trustees, employees, or agents connected with or arising out of any services
rendered under a Sub-Adviser Agreement, except by reason of willful misfeasance,
bad faith, or gross negligence in the performance of the Manager's duties under
this Agreement, or by reason of reckless disregard of the Manager's obligations
and duties under this Agreement. No trustee, officer, employee or agent of the
Trust shall be subject to any personal liability whatsoever, in his or her
official capacity, to any person, including the Sub-Adviser,
6
other than to the Trust or its shareholders, in connection with Trust property
or the affairs of the Trust, save only that arising from his or her bad faith,
willful misfeasance, gross negligence or reckless disregard of his or her duty
to such person; and all such persons shall look solely to the Trust property
for satisfaction of claims of any nature against a trustee, officer, employee
or agent of the Trust arising in connection with the affairs of the Trust.
Moreover, the debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a Series shall be enforceable against
the assets and property of that Series only, and not against the assets or
property of any other series of the Trust.
11. Continuation and Termination. 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 each Series, shall have approved this Agreement. Unless
terminated as provided herein, the Agreement shall continue in full force and
effect with respect to each Series for two (2) years from the date indicated
above, and shall continue from year to year thereafter with respect to each
Series so long as such continuance is specifically approved at least annually
(i) by the vote of a majority of the Board of Trustees of the Trust, or (ii) by
vote of a majority of the outstanding voting shares of the Series (as defined
in the 1940 Act), and provided continuance is also approved by the vote of a
majority of the Board of Trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the 0000 Xxx) of the Trust or
the Manager, cast in person at a meeting called for the purpose of voting on
such approval. This Agreement may not be amended in any material respect
without a majority vote of the outstanding voting shares (as defined in the
1940 Act).
However, any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 0000 Xxx) of a Series shall be effective
to continue this Agreement with respect to such Series notwithstanding (i) that
this Agreement has not been approved by the holders of a majority of the
outstanding shares of any other Series or (ii) that this Agreement has not been
approved by the vote of a majority of the outstanding shares of the Trust,
unless such approval shall be required by any other applicable law or otherwise.
This Agreement may be terminated by the Trust at any time, in its entirety or
with respect to a Series, without the payment of any penalty, by vote of a
majority of the Board of Trustees of the Trust or by a vote of a majority of the
outstanding voting shares of the Trust, or with respect to a Series, by vote of
a majority of the outstanding voting shares of such Series, on sixty (60) days'
written notice to the Manager, or by the Manager at any time, without the
payment of any penalty, on sixty (60) days' written notice to the Trust. This
Agreement will automatically and immediately terminate in the event of its
"assignment" as described in the 1940 Act.
12. Use of Name. It is understood that the name "ING Investments, LLC" or
any derivative thereof (including the name "ING") or logo associated with that
name is the valuable property of the Manager and its affiliates, and that the
Trust and the Series have the right to use such name (or derivative or logo)
only so long as this Agreement shall continue with respect to such Trust and
Series. Upon termination of this Agreement, the Trust (or Series) shall
forthwith cease to use such name (or derivative or logo) and, in the case of the
Trust, shall promptly amend its Trust Instrument to change its name (if such
name is included therein).
7
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
14. Applicable Law.
(a) This Agreement shall be governed by the laws of the State of
Delaware, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
(b) 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.
(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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
ING MUTUAL FUNDS
By: /s/ Xxxxxx X. Naka
--------------------------
Xxxxxx X. Naka
Senior Vice President
ING INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
8
SCHEDULE A
WITH RESPECT TO THE
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING MUTUAL FUNDS
AND
ING INVESTMENTS, LLC
SERIES ANNUAL INVESTMENT MANAGEMENT FEE
------ --------------------------------
(as a percentage of average
daily net assets)
ING Emerging Countries Fund 1.25%
ING Global Value Choice Fund 1.00% of the first $250 million of assets
0.90% of the next $250 million of assets
0.80% of the next $500 million of assets
0.75% of assets in excess of $1 billion
ING International Value Choice Fund 1.00%
ING International SmallCap Growth
Fund 1.00% of the first $500 million of assets
0.90% of the next $500 million of assets
0.85% of assets in excess of $1 billion
ING Global Real Estate Fund 1.00% of the first $250 million of assets
0.90% of the next $250 million of assets
0.80% of assets in excess of $500 million
9
