INVESTMENT MANAGEMENT AGREEMENT ING INFRASTRUCTURE, INDUSTRIALS AND MATERIALS FUND
Exhibit
77(q)(e)(1)
ING
INFRASTRUCTURE, INDUSTRIALS AND MATERIALS FUND
THIS
INVESTMENT MANAGEMENT AGREEMENT, made as of January 26, 2010, is by and between
ING INFRASTRUCTURE, INDUSTRIALS AND MATERIALS FUND, a Delaware statutory trust
(hereinafter called the “Fund”), and ING INVESTMENTS, LLC, a limited liability
company organized and existing under the laws of the State of Arizona
(hereinafter called the “Manager”).
WHEREAS, the Fund is a
closed-end management investment company, registered as such under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Manager is
registered as an investment adviser under the Investment Advisers Act of 1940,
and is engaged in the business of supplying investment advice, investment
management and administrative services, as an independent contractor;
and
WHEREAS, the Fund desires to
retain the Manager to render advice and services pursuant to the terms and
provisions of this Agreement, and the Manager is willing to furnish said advice
and services.
NOW, THEREFORE, in
consideration of the covenants and the mutual promises hereinafter set forth,
the parties hereto, intending to be legally bound hereby, mutually agree as
follows:
1. The
Fund hereby employs the Manager and the Manager hereby accepts such employment,
to render investment advice and investment services with respect to the assets
of the Fund, subject to the supervision and direction of the Board of Trustees
of the Fund (the “Trustees”). The Manager shall, except as otherwise provided
for herein, render or make available all services needed for the management of
the investment operations of the Fund, and shall, as part of its duties
hereunder (i) furnish the Fund with advice and recommendations with respect to
the investment of the Fund’s assets and the purchase and sale of its portfolio
securities, including the taking of such other steps as may be necessary to
implement such advice and recommendations; (ii) furnish the Fund with reports,
statements and other data on securities, economic conditions and other pertinent
subjects which the Trustees may request; (iii) furnish such office space and
personnel as is needed by the Fund; and (iv) in general superintend and manage
the investments of the Fund, subject to the ultimate supervision and direction
of the Trustees.
Subject
to the approval of the Trustees of the Fund, the Manager is authorized to enter
into sub-advisory agreements with other registered investment advisers to serve
as investment sub-advisers, 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. The Fund and Manager
understand and agree that the Manager may manage the Fund 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 Fund; and (ii) periodically
make recommendations to the Fund’s Trustees regarding the results of its
evaluation and monitoring functions. The Fund recognizes that, subject to the
approval of the Trustees of the Fund, a Sub-Adviser’s services may be terminated
or modified and that the Manager may appoint a new Sub-Adviser for the Fund,
subject to an applicable SEC Order.
2. The
Manager shall use its best judgment and efforts in rendering the advice and
services to the Fund as contemplated by this Agreement.
3. The
Manager shall, for all purposes herein, be deemed to be an independent
contractor, and shall, unless otherwise expressly provided and authorized, have
no authority to act for or represent the Fund in any way, or in any way be
deemed an agent for the Fund. It is expressly understood and agreed that the
services to be rendered by the Manager to the Fund under the provisions of this
Agreement are not to be deemed exclusive, and the Manager shall be free to
render similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired
thereby.
4. The
Manager agrees to use its best efforts in the furnishing of such advice and
recommendations to the Fund, in the preparation of reports and information, and
in the management of the Fund’s assets, all pursuant to this Agreement, and for
this purpose the Manager shall, at its own expense, maintain such staff and
employ or retain such personnel and consult with such other persons as it shall
from time to time determine to be necessary to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, the staff and personnel of the Manager shall be deemed to include
persons employed or retained by the Manager to furnish statistical, research,
and other factual information, advice regarding economic factors and trends,
information with respect to technical and scientific developments, and such
other information, advice and assistance as the Manager may desire and
request.
5. The
Fund will from time to time furnish to the Manager detailed statements of the
investments and assets of the Fund and information as to its investment
objectives and needs, and will make available to the Manager such financial
reports, proxy statements, legal and other information relating to its
investments as may be in the possession of the Fund or available to it and such
other information as the Manager may reasonably request.
6. Whenever
the Manager has determined that the Fund should tender securities pursuant to a
“tender offer solicitation,” the Manager shall designate an affiliate as the
“tendering dealer” so long as it is legally permitted to act in such capacity
under the federal securities laws and rules thereunder and the rules of any
securities exchange or association of which such affiliate may be a member. Such
affiliated dealer shall not be obligated to make any additional commitments of
capital, expense or personnel beyond that already committed (other than normal
periodic fees or payments necessary to maintain its corporate existence and
membership in the National Association of Securities Dealers, Inc.) as of the
date of this Agreement. This Agreement shall not obligate the Manager or such
affiliate (i) to act pursuant to the foregoing requirement under any
circumstances in which they might reasonably believe that liability might be
imposed upon them as a result of so acting, or (ii) to institute legal or other
proceedings to collect fees which may be considered to be due from others to it
as a result of such a tender, unless the Fund shall enter into an agreement with
such affiliate to reimburse it for all expenses connected with attempting to
collect such fees, including legal fees and expenses and that portion of the
compensation due to their employees which is attributable to the time involved
in attempting to collect such fees.
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7.
The Manager shall bear and pay the costs of rendering the services to be
performed by it under this Agreement. The Fund shall bear and pay for all other
expenses of its operation, including, but not limited to, expenses incurred in
connection with the issuance, registration and transfer of its shares; fees of
its custodian, transfer and shareholder servicing agent; costs and expenses of
pricing and calculating its daily net asset value and of maintaining its books
of account required by the 1940 Act; expenditures in connection with meetings of
the shareholders and directors, except those called solely to accommodate the
Manager; salaries of officers and fees and expenses of directors or members of
any advisory board or committee who are not members of, affiliated with or
interested persons of the Manager; salaries of personnel involved in placing
orders for the execution of the Fund’s portfolio transactions or in maintaining
registration of its shares under state securities laws; insurance premiums on
property or personnel of the Fund which inure to its benefit; the cost of
preparing and printing reports, proxy statements and prospectuses of the Fund or
other communications for distribution to its shareholders; legal, auditing and
accounting fees; Board-approved trade association dues; fees and expenses of
registering and maintaining registration of its shares for sale under federal
and applicable state securities laws; and all other charges and costs of its
operation plus any extraordinary and non-recurring expenses, except as herein
otherwise prescribed. To the extent the Manager incurs any costs or performs any
services which are an obligation of the Fund, as set forth herein, the Fund
shall promptly reimburse the Manager for such costs and expenses. To the extent
the services for which the Fund is obligated to pay are performed by the
Manager, the Manager shall be entitled to recover from the Fund only to the
extent of its costs for such services.
8. The
Manager may delegate the performance of certain investment advisory services, as
described hereunder, to a sub-adviser.
9. (a) The
Fund agrees to pay to the Manager, and the Manager agrees to accept, as full
compensation for all administrative and investment management services furnished
or provided to the Fund and as full reimbursement for all expenses assumed by
the Manager, a management fee equal to the amount specified for the Fund on
Schedule
A.
(b) The
management fees shall be accrued daily by the Fund and paid to the Manager at
the end of each calendar month.
(c) To
the extent that the gross operating costs and expenses of the Fund (excluding
any interest taxes, brokerage commissions, and, with the prior written approval
of any state securities commission requiring same, any extraordinary expenses,
such as litigation)
exceed
the allowable expense limitations of the state in which shares of the Fund are
registered for sale having the most stringent expense reimbursement provisions,
the Manager shall reimburse the Fund for the amount of such
excess.
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(d) The
management fee payable by the Fund hereunder shall be reduced to the extent that
an affiliate of the Manager has actually received cash payments of tender offer
solicitation fees less certain costs and expenses incurred in connection
therewith, as referred to in Paragraph 6 herein.
10. The
Manager agrees that neither it nor any of its officers or employees shall take
any short position in the capital stock of the Fund. This prohibition shall not
prevent the purchase of such shares by any of the officers and directors or bona
fide employees of the Manager or any trust, pension, profit-sharing or other
benefit plan for such persons or affiliates thereof, at a price not less than
the net asset value thereof at the time of purchase, as allowed pursuant to
rules promulgated under the 1940 Act, as amended.
11. Nothing
herein contained shall be deemed to require the Fund to take any action contrary
to the Declaration of Trust or By-Laws of the Fund, or any applicable statute or
regulation, or to relieve or deprive the Trustees of the Fund of its
responsibility for and control of the conduct of the affairs of the
Fund.
12. (a) In
the absence of willful misfeasance, bad faith, gross negligence, or reckless
disregard of obligations or duties hereunder on the part of the Manager, the
Manager shall not be subject to liability 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 by the Fund.
(b) Notwithstanding
the foregoing, the Manager agrees to reimburse the Fund for any and all costs,
expenses, and counsel and Trustees’ fees reasonably incurred by the Fund in the
preparation, printing and distribution of proxy statements, amendments to its
Registration Statement, the holding of meetings of its shareholders or Trustees,
the conduct of factual investigations, any legal or administrative proceedings
(including any applications for exemptions or determinations by the Securities
and Exchange Commission) which the Fund incurs as a result of action or inaction
of the Manager or any of its shareholders where the action or inaction
necessitating such expenditures (i) is directly or indirectly related to any
transactions or proposed transaction in the shares or control of the Manager or
its affiliates (or litigation related to any pending or proposed future
transaction in such shares or control) which shall have been undertaken without
the prior, express approval of the Fund’s Trustees, or (ii) is within the sole
control of the Manager or any of its affiliates or any of their officers,
directors, employees or shareholders. The Manager shall not be obligated
pursuant to the provisions of this subparagraph 11(b), to reimburse the Fund for
any expenditures related to the institution of an administrative proceeding or
civil litigation by the Fund or by a Fund shareholder seeking to recover all or
a portion of the proceeds derived by any shareholder of the Manager or any of
its affiliates from the sale of his shares of the Manager, or similar matters.
So long as this Agreement is in effect, the Manager shall pay to the Fund the
amount due for expenses subject to this subparagraph 11(b) within thirty (30)
days after a xxxx or statement has been received by the Fund therefor. This
provision shall not be deemed to be a waiver of any claim the Fund may have or
may assert against the Manager or others or costs, expenses, or damages
heretofore incurred by the Fund for costs, expenses, or damages the Fund may
hereafter incur which are not reimbursable to it hereunder.
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(c) No
provision of this Agreement shall be construed to protect any director or
officer of the Fund, or of the Manager, from liability in violation of Sections
17(h) and (i) of the 1940 Act.
13. This
Agreement shall become effective on the date first written above, subject to the
condition that the Fund’s Trustees, including a majority of those Trustees who
are not interested persons (as such term is defined in the 0000 Xxx) of the
Manager, and the shareholders of the Fund, shall have approved this Agreement.
Unless terminated as provided herein, the Agreement shall continue in full force
and effect until November
30, 2011, and shall continue from year to year thereafter so long as such
continuation is approved at least annually by (i) the Trustees of the Fund or by
the vote of a majority of the outstanding voting securities of the Fund, and
(ii) the vote of a majority of the Trustees of the Fund who are not parties to
this Agreement or interested persons thereof, cast in person at a meeting called
for the purpose of voting on such approval.
14. This
Agreement may be terminated at any time, without payment of any penalty, by the
Trustees of the Fund or by vote of a majority of the outstanding voting
securities of the Fund, upon sixty (60) days written notice to the Manager, and
by the Manager upon sixty (60) days written notice to the Fund.
15. This
Agreement shall terminate automatically in the event of any transfer or
assignment thereof, as defined in the 1940 Act, as amended.
16. This
Agreement may not be transferred, assigned, sold or in any manner hypothecated
or pledged without the affirmative vote or written consent of the holders of a
majority of the outstanding voting securities of the Fund.
17. 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.
18. The
term “majority of the outstanding voting securities” of the Fund shall have the
meaning as set forth in the 1940 Act, as amended.
19. This
Agreement shall be governed by the laws of the State of New York, provided that
nothing herein shall be construed in a manner inconsistent with the 1940 Act,
the Investment Advisors Act of 1940, or any rules or orders of the SEC
thereunder.
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ING
INFRASTRUCTURE, INDUSTRIALS AND
MATERIALS
FUND
By:
_/s/ Xxxxxxxx X.
Anderson_____________
Xxxxxxxx
X. Xxxxxxxx
Senior
Vice President
ING
INVESTMENTS, LLC
By:
_/s/ Xxxx
Modic_____________________
Xxxx
Xxxxx
Senior
Vice President
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SCHEDULE
A
with
respect to the
Between
ING
INFRASTRUCTURE, INDUSTRIALS AND MATERIALS FUND
and
ING
INVESTMENTS, LLC
Fund
|
Annual Investment
Management Fee
(as
a percentage of Managed Assets1)
|
ING
Infrastructure, Industrials and Materials Fund
|
1.00%
|
________________________
1 For
purposes of this Agreement, “Managed Assets” shall mean the Fund’s average daily
gross asset value, minus the sum of the Fund’s accrued and unpaid dividends on
any outstanding preferred shares and accrued liabilities (other than liabilities
for the principal amount of any borrowings incurred, commercial paper or notes
issued by the Fund and the liquidation preference of any outstanding preferred
shares).
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