Exhibit 77e(1)
INVESTMENT MANAGEMENT AGREEMENT
Agreement dated May 16, 2007, between ING Separate Portfolios Trust (the
"Trust"), a Delaware statutory trust, and ING Investment Management Co. (the
"Manager"), a Connecticut corporation (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");
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;
WHEREAS, the Trust has established separate series that are designated as
ING SPorts Core Fixed Income Fund and ING SPorts Plus Fixed Income, and may
offer shares of additional series in the future;
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 registered with the Securities and Exchange
Commission (the "SEC") as an investment adviser under the Investment Advisers
Act of 1940, as amended (the "Advisers Act");
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 on Schedule
A hereto (individually and collectively referred to herein as "Series"). 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 (other
than the 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, and
be subject to this Agreement.
2. Services of the Manager. The Manager represents and warrants that it is
registered as an investment adviser under the Advisers Act and will maintain
such registration for so long as required by applicable law. Subject to the
general supervision of the Board of the Trust, the Manager shall provide the
following advisory, management, and other services with respect to the Series:
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(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;
(b) Render to the Board of the Trust such periodic and special
reports as the Board may reasonably request; and
(c) Make available its officers and employees to the Board 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.
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,
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, or derivative instruments, on behalf of the 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 on Form N-1A 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 Trust or counsel to
the Manager.
(b) The Manager will conform to, and comply 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, and the provisions of the Registration Statement of the Trust under the
Securities Act of 1933, as amended, 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
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Trust's Board, 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 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
Trust 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 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 Trust's custodian.
(e) The Manager will assist the custodian or portfolio accounting
agent for the Trust 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, 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 Trust 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 Trust are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Manager will regularly report to the Trust's Board on the
investment program for the Series and the issuers and securities represented in
the Series' portfolio, and will furnish the Trust's Board 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, as may be amended, and 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, by other
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aspects of the portfolio execution services offered. Subject to such policies as
the Board may determine and consistent with Section 28(e) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), 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 1934 Act and Rule 11a2-2(T) thereunder, the Manager is
further authorized to 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 the
Trust indicating the broker-dealers to which such allocations have been made and
the basis therefor.
(i) With respect to any investments, including but not limited to
repurchase and reverse repurchase agreements, derivatives, futures contracts and
options on futures contracts ("futures"), which are permitted to be made by the
Manager in accordance with this Agreement and the investment objectives of the
Series as outlined in the Prospectus and/or Statement of Additional Information
for the Trust, the Trust hereby authorizes and directs the Manager to do and
perform every act and thing whatsoever necessary or incidental in performing its
duties and obligations under this Agreement including, but not limited to,
executing brokerage agreements and other documents to establish, operate and
conduct all brokerage or other trading accounts in the name of the Trust, and
executing such agreements and other documentation as may be required for the
purchase or sale, assignment, transfer and ownership of any permitted
investment, including limited partnership agreements, repurchase and derivative
master agreements, including any schedules and annexes to such agreements,
releases, consents, elections and confirmations. The Trust acknowledges and
understands that it will be bound by any such trading accounts established, and
agreements and other documentation executed, by the Manager for such investment
purposes.
4. Conformity with Board Instructions. The Manager, in the performance of
its duties and obligations under this Agreement, shall act in conformity with
the instructions and directions of the Board of the Trust.
5. Non-Exclusivity. The services of the Manager to the Trust under this
Agreement are not 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.
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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 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 Trust 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 that are assumed by the Series under this Agreement and any
expenses that are paid by a party other than the Trust under the terms of any
other agreement to which the Trust is a party or third-party beneficiary. The
Manager further agrees to pay executive salaries and expenses of the Trustees of
the Trust who are employees of the Manager or its parent company. 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
agents; the expense of obtaining quotations for calculating the Trust's net
asset value; taxes, if any, and the preparation of the Trust's 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 Trust 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 Trust 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
Trust's 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 its 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.
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9. Compensation. The Manager shall receive no investment advisory or other
fee from the Trust for the services provided under this Agreement. The Manager
acknowledges and agrees that the Series are an integral part of wrap fee
programs, and that the Manager will be compensated directly or indirectly by
wrap program sponsors for services rendered hereunder.
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, directors, employees, or agents shall be subject to 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. 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,
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. With respect to each Series identified
as a Series on Schedule A hereto as in effect on the date of this Agreement,
unless earlier terminated with respect to any Series this Agreement shall
continue in full force and effect through November 30, 2008. Thereafter, unless
earlier terminated with respect to a Series, the Agreement shall continue in
full force and effect with respect to each such Series for periods of one year,
provided that such continuance is specifically approved at least annually by (i)
the vote of a majority of the Board of Trustees of the Trust, or (ii) the vote
of a majority of the outstanding voting shares of the Series (as defined in the
1940 Act), and provided that such 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.
With respect to any Series that was added to Schedule A hereto as a Series
after the date of this Agreement, the Agreement shall become effective on the
later of (i) the date Schedule A is amended to reflect the addition of such
Series as a Series under the Agreement or (ii) the date upon which the shares of
the Series are first sold to the public, 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 such Series, shall have approved this Agreement. Unless
terminated earlier as provided herein with respect to any such Series, the
Agreement shall continue in full force and effect for a period of two years from
the date of its effectiveness (as identified above) with respect to that Series.
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Thereafter, unless earlier terminated with respect to a Series, the Agreement
shall continue in full force and effect with respect to each such Series for
periods of one year, provided that such continuance is specifically approved at
least annually by (i) the vote of a majority of the Board of Trustees of the
Trust, or (ii) vote of a majority of the outstanding voting shares of such
Series (as defined in the 1940 Act), and provided that such 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.
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 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 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. 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. If shareholder approval of an amendment is required under
the 1940 Act, no such amendment shall become effective until approved by a vote
of the majority of the outstanding shares of the Trust. Otherwise, a written
amendment of this Agreement is effective upon the approval of the Board and the
Manager.
13. Use of Name. It is understood that the name "ING" or "ING Investment
Management Co." or any derivative thereof or logo associated with that name is
the valuable property of the Manager and its affiliates, and that the Trust
and/or 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/or
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 Declaration of Trust to change its name (if such
name is included therein).
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
15. 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 Advisers Act, or any rules or order of the
SEC thereunder.
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(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.
16. Certificate and Declaration of Trust. A Certificate of Trust for the
Trust is on file with the Secretary of the State of Delaware. The Certificate of
Trust has been executed on behalf of the Trust by the initial Trustee of the
Trust in his capacity as Trustees of the Trust and not individually. The
obligations set forth in the Trust's Declaration of Trust shall be binding upon
the assets and property of the Trust and shall not be binding upon any Trustee,
officer or shareholder of the Trust individually. In addition, the Manager
agrees that the obligations assumed by the Trust on behalf of the Series
pursuant to this Agreement shall be limited in all cases to the applicable
Series and its assets, and the Manager shall not seek satisfaction of any such
obligation from any other Series of the Trust. The Manager understands that the
assets and liabilities, and the rights and obligations associated therewith of
each Series under the Amended and Restated Agreement and Declaration of Trust
are separate and distinct from those of any and all other Series.
17. Notices. Any notice, direction, instruction, acknowledgment, or other
communication required or contemplated by this Agreement shall be in writing and
addressed as follows:
To the Trust:
ING Separate Portfolios Trust
0000 X Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Chief Counsel
To the Manager:
ING Investment Management Co.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Chief Compliance Officer
With a copy to:
ING Investment Management Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
Any party hereto by notice hereunder to the other may designate a
different address.
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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 Separate Portfolios Trust
By:
-----------------------------
Xxxxxxxx X. Xxxxxxxx
Senior Vice President
ING Investment Management Co.
By:
-----------------------------
Name:
Title:
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SCHEDULE A
with respect to the
INVESTMENT MANAGEMENT AGREEMENT
between
ING SEPARATE PORTFOLIOS TRUST
and
ING INVESTMENT MANAGEMENT CO.
Series Annual Investment Management Fee*
------ ---------------------------------
ING SPorts Core Fixed Income Fund 0.00%
ING SPorts Core Plus Fixed Income Fund 0.00%
* The Manager has agreed to contractually waive its investment management fee,
indefinitely.
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