Exhibit (d)(3)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 23rd day of September, 2002 by and between ING MUTUAL
FUNDS, a Delaware Business Trust (the "Trust"), on behalf of its series listed
on Schedule A hereto (the "Fund"), and ING INVESTMENTS, LLC, a Delaware Limited
Liability Company (the "Investment Manager").
WITNESSETH
WHEREAS, the Trust is registered as an open-end, investment company under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and the rules and regulations promulgated thereunder; and
WHEREAS, the Investment Manager is registered and will remain registered
during the term of this Agreement as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Investment Advisers Act"), and engages in
the business of acting as an investment adviser; and
WHEREAS, the Trust's Board of Trustees authorized this agreement at a
meeting held August 20, 2002; and
WHEREAS, the Trust and the Investment Manager desire to enter into an
agreement to provide for the management of the assets of each Fund on the terms
and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. Management. The Investment Manager shall act as investment adviser for the
Fund of the Trust and shall, in such capacity, supervise the investment and
reinvestment of the cash, securities or other properties comprising the Fund's
assets, subject at all times to the policies and control of the Trust's Board of
Trustees. The Investment Manager shall give the Fund the benefit of its best
judgment, efforts and facilities in rendering its services as investment
adviser. The Investment Manager shall, for all purposes herein, be deemed an
independent contractor and shall have, unless otherwise expressly provided or
authorized, no authority to act for or represent the Trust, on behalf of the
Fund, in any way or otherwise be deemed an agent of the Trust.
2. Duties of Investment Manager. In carrying out its obligation under
paragraph 1 hereof, the Investment Manager shall: (a) supervise and manage all
aspects of the Fund's operations; (b) provide the Fund, and thereafter
supervise, such executive, administrative, clerical and shareholder servicing
services as are deemed advisable by the Trust's Board of Trustees; (c) arrange,
but not pay for, the periodic updating of prospectuses and supplements thereto,
proxy material, tax returns, reports to the Fund's shareholders and reports to
and filings with the Securities and Exchange Commission and state Blue Sky
authorities; (d) provide the Fund with, or obtain for each, adequate office
space and all necessary office equipment and services, including telephone
service, heat, utilities, stationery supplies and similar items for the Fund's
principal office; (e) provide the Board of Trustees of the Trust on a regular
basis with financial reports and analyses on the Fund's operations and the
operations of comparable investment companies; (f) obtain and evaluate pertinent
information about significant developments and economic, statistical and
financial data, domestic, foreign or otherwise, whether affecting the economy
generally or the Fund, and whether concerning the individual issuers whose
securities are included in the Fund or the activities in which they engage, or
with respect to securities which the Investment Manager considers desirable for
inclusion in the Fund; (g) determine what issuers and securities shall be
represented in the Fund's respective portfolios and regularly report them to the
Board of Trustees of the Trust; (h) formulate and implement continuing programs
for the purchases and sales of the securities of such issuers and regularly
report thereon to the Board of Trustees of the Trust; and (i) take, on behalf of
the Fund, all actions which appear necessary to carry into effect such purchase
and sale programs and supervisory functions as aforesaid, including the placing
of orders for the purchase and sale of portfolio securities.
3. Broker Dealer Relationships. The Investment Manager is responsible for
decisions to buy and sell securities for the Fund, broker-dealer selection, and
negotiation of brokerage commission rates. The Investment Manager may select any
affiliated person of the Trust or the Investment Manager to the extent permitted
pursuant to the Trust's procedures for securities transactions with affiliated
brokers pursuant to Section 17(e)(2) and Rule 17e-1 under the Investment Company
Act.
The Investment Manager's primary consideration in effecting a security
transaction will be execution at a price that is reasonable and fair compared to
the commission, fee or other remuneration received or to be received by other
brokers in connection with comparable transactions, including similar securities
being purchased or sold on a securities exchange during a comparable period of
time. In selecting a broker-dealer to execute each particular transaction, the
Investment Manager will take the following into consideration: the best net
price available; the reliability, integrity and financial condition of the
broker-dealer; the size of and difficulty in executing the order; and the value
of the expected contribution of the broker-dealer to the investment performance
of the Fund on a continuing basis. Accordingly, the price to the Fund in any
transaction may be less favorable than that available from another broker-dealer
if the difference is reasonably justified by other aspects of the portfolio
execution services offered.
Subject to such policies and procedures as the Board of Trustees may
determine, the Investment Manager shall not be deemed to have acted unlawfully
or to have breached any duty created by this Agreement or otherwise solely by
reason of its having caused the Fund to pay a broker or dealer that provides
brokerage and research services to the Investment Manager for the Fund's use an
amount of commission for effecting a portfolio investment transaction in excess
of the amount of commission another broker or dealer would have charged for
effecting that transaction, if the Investment Manager
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determines in good faith that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
Investment Manager's overall responsibilities with respect to the Fund. The
Investment Manager is further authorized to allocate the orders placed by it on
behalf of the Fund to such brokers and dealers who also provide research or
statistical material, or other services to the Fund or the Investment Manager
for the Fund's use. Such allocation shall be in such amounts and proportions as
the Investment Manager shall determine and the Investment Manager will report on
said allocations regularly to the Board of Trustees of the Trust indicating the
brokers to whom such allocations have been made and the basis therefor.
4. Control by Board of Trustees. Any investment program undertaken by the
Investment Manager pursuant to this Agreement, as well as any other activities
undertaken by the Investment Manager on behalf of the Fund pursuant thereto,
shall at all times be subject to any directives of the Board of Trustees of the
Trust.
5. Compliance with Applicable Requirements. In carrying out its obligations
under this Agreement, the Investment Manager shall at all times conform to: (a)
all applicable provisions of the Investment Company Act and the Investment
Advisers Act and any rules and regulations adopted thereunder as amended; and
(b) the provisions of the Registration Statement of the Trust under the
Securities Act of 1933, as amended, and the Investment Company Act; and (c) the
provisions of the Trust Instrument of the Trust, as amended; and (d) the
provisions of the By-laws of the Trust, as amended; and (e) any other applicable
provisions of state and federal law.
6. Expenses. The expenses connected with the Fund shall be allocable between
the Fund and the Investment Manager as follows:
(a) The Investment Manager shall furnish, at its expense and without cost
to the Fund, the services of a President, Secretary and one or more Vice
Presidents of the Trust, to the extent that such additional officers may be
required by the Trust for the proper conduct of its affairs;
(b) The Investment Manager shall further maintain, at its expense and
without cost to the Fund, a trading function in order to carry out its
obligations under subparagraph (h) of paragraph 2 hereof to place orders
for the purchase and sale of portfolio securities for the Fund;
(c) Nothing in subparagraph (a) hereof shall be construed to require the
Investment Manager to bear: (i) any of the costs (including applicable
office space, facilities and equipment) of the services of a principal
financial officer of the Trust whose normal duties consist of maintaining
the financial accounts and books and records of the Fund; including the
review of calculations of net asset value and preparing tax returns; or
(ii) any of the costs (including applicable office space, facilities and
equipment) of the services of any of the personnel operating under the
direction of such principal financial officer. Notwithstanding
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the obligation of the Fund to bear the expense of the functions referred to
in clauses (i) and (ii) of this subparagraph (c), the Investment Manager
may pay the salaries, including any applicable employment or payroll taxes
and other salary costs; of the principal financial officer and other
personnel carrying out such functions and the Fund shall reimburse the
Investment Manager therefor upon proper accounting.
(d) All of the ordinary business expenses incurred in the operations of
the Fund and the offering of shares shall be borne by the Fund unless
specifically provided otherwise in this paragraph. These expenses include,
but are not limited to, brokerage commissions, legal, auditing, taxes or
governmental fees, networking servicing costs, fund accounting servicing
costs, fulfillment servicing costs, the cost of preparing share
certificates, custodian, depository, transfer and shareholder service agent
costs, expenses of issue, sale, redemption and repurchase of shares,
expenses of registering and qualifying shares for sale, insurance premiums
on property or personnel (including officers and trustees if available) of
the Fund which inure to the Fund benefit, expenses relating to trustee and
shareholder meetings, the cost of preparing and distributing reports and
notices to shareholders, the fees and other expenses incurred by the Trust
in connection with membership in investment company organizations and the
cost of printing copies of prospectuses and statements of additional
information distributed to shareholders.
7. Delegation of Responsibilities. The Investment Manager may delegate the
performance of certain investment advisory services, as described hereunder, to
a sub-adviser.
8. Compensation. For the services provided and the expenses assumed pursuant
to this Agreement, the Fund will pay the Investment Manager and the Investment
Manager will accept as full compensation therefor a fee computed daily and paid
monthly in arrears at the annual rate set forth on Schedule A, based on the
Fund's average daily net assets, computed in the manner set forth in the
Registration Statement of the Trust. If the fees payable to the Investment
Manager begin to accrue before the end of any month, or if this Agreement
terminates before the end of any month, then such fees for such month shall be
prorated according to the proportion which the partial period bears to the full
month in which such effectiveness or termination occurs. The Investment Manager
may from time to time and for such periods as it deems appropriate voluntarily
reduce its compensation hereunder (and/or voluntarily assume expenses) for the
Fund.
9. Non-Exclusivity. The services of the Investment Manager to the Fund are not
to be deemed to be exclusive, and the Investment Manager shall be free to render
investment advisory and corporate administrative or other services to others
(including other investment companies) and to engage in other activities. It is
understood and agreed that officers or members of the Investment Manager may
serve as officers or trustees of the Trust, and that officers or trustees of the
Trust may serve as officers or members of the Investment Manager to the extent
permitted by law; and that the officers and
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members of the Investment Manager are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers or partners of any other firm or corporation,
including other investment companies.
10. Term and Approval. This Agreement shall become effective as it pertains to
the Fund on the date first written above. Unless terminated as provided herein,
the Agreement shall continue in full force and effect with respect to each Fund
until the Reapproval Date set forth for such Fund on Schedule A to this
Agreement, and shall continue from year to year thereafter with respect to each
Fund provided that such continuance is specifically approved at least annually:
(a) (i) by the Trust's Board of Trustees or (ii) by the vote of a majority of
the Fund's outstanding voting securities (as defined in Section 2(a)(42) of the
Investment Company Act); and (b) by the affirmative vote of a majority of the
Trustees who are not parties to this Agreement or interested persons of a party
to this Agreement (other than as Trust trustees), by votes cast in person at a
meeting specifically called for such purpose.
11. Termination. This Agreement may be terminated at any time as it pertains to
the Fund, without the payment of any penalty, by vote of the Trust's Board of
Trustees or by vote of a majority of the Fund's outstanding voting securities,
or by the Investment Manager, on sixty (60) days' written notice to the other
party. The notice provided for herein may be waived by either party. This
Agreement shall automatically terminate as it pertain to the Fund in the event
of its assignment, the term "assignment" for the purpose having the meaning
defined in Section 2(a)(4) of the Investment Company Act.
12. Liability of Investment Manager and Indemnification. In the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Investment Manager or any of
its officers, trustees or employees, the Investment Manager shall not be subject
to liability to the Trust or to the Fund or to any shareholder of the Fund for
any act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Investment Manager or any officer, director or employee of the Investment
Manager, the Trust hereby agrees to indemnify and hold the Investment Manager
harmless from and against all claims, actions, suits, and proceedings at law or
in equity whether brought or asserted by a private party or a governmental
agency, instrumentality or entity of any kind, relating to the sale, purchase,
pledge of, advertisement of, or solicitation of sales or purchases of any
security (whether of the Fund or otherwise) by the Trust, its officers,
directors, employees or agents in alleged violation of applicable federal, state
or foreign laws, rules or regulations.
13. Limit of Liability. The terms "ING Mutual Funds" and "Trustees" (of the
Trust) refer, respectively to the trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under the Trust's
organizational documentation, to which reference is hereby made. The obligations
of "ING Mutual Funds" entered into in
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the name or on behalf thereof by any of the Trustees, representatives or agents
are made not individually, but in such capacities and are not binding upon any
of the Trustees, shareholders or representatives of the Trust personally, but
bind only the assets of the Fund, and all persons dealing with the Fund or other
series of the Trust must look solely to the assets of the Fund for the
enforcement of any claims against the Trust.
14. License Agreement. The Trust shall have the non-exclusive right to use the
name "ING" to designate itself and any current or future series of shares only
so long as ING Investments, LLC serves as investment manager or adviser to the
Trust with respect to such series of shares. In the event that the Investment
Manager ceases to act as the investment manager to the Fund, the Trust shall
cease using the name "ING" upon the Investment Manager's written request.
15. Amendment of this Agreement. 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. Further, any material amendment, as determined by the
parties hereto with the assistance of legal counsel, shall not be effective
until approved: (a) (i) by the Trust's Board of Trustees and (ii) by the vote of
a majority of the Fund's, as applicable, outstanding voting securities (as
defined in Section 2(a)(42) of the Investment Company Act); and (b) by the
affirmative vote of a majority of the Trustees who are not parties to this
Agreement or interested persons of a party to this Agreement (other than as
Trust trustees), by votes cast in person at a meeting specifically called for
such purpose.
16. Notices. Any notices under this Agreement shall be in writing, addressed
and delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that the address of the Trust and that of the
Investment Manager shall be 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
00000.
17. Questions of Interpretation. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the Investment Company Act shall be resolved by reference
to such term or provision of the Act and to interpretations thereof, if any, by
the United States Courts or in the absence of any controlling decision of any
such court, by rules, regulations or orders of the Securities and Exchange
Commission issued pursuant to said Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is released by rules, regulation or order of the Securities and
Exchange Commission, such provision shall be deemed to incorporate the effect of
such rule, regulation or order.
18. Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original and both of which, collectively, shall constitute
one agreement.
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19. Miscellaneous. The captions in this Agreement are- included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. 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. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
above written.
ING MUTUAL FUNDS
By:_________________________________
Xxxxxx X. Naka
Senior Vice President
ING INVESTMENTS, LLC
By:_________________________________
Xxxxxxx X. Xxxxxx
Executive Vice President
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SCHEDULE A
WITH RESPECT TO THE
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING MUTUAL FUNDS
AND
ING INVESTMENTS, LLC
DATED: SEPTEMBER 23, 2002
ANNUAL INVESTMENT
MANAGEMENT FEE
(as a percentage of average LAST CONTINUED/
SERIES daily net assets) APPROVED BY BOARD REAPPROVAL DATE
-------------------------- --------------------------- ----------------- ---------------
ING Global Technology Fund 1.25% August 20, 2002 September 1, 2003
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