AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
Exhibit
77(e)(3)
AMENDED
AND RESTATED SUB-ADVISORY AGREEMENT
AGREEMENT
made the 7th day of December, 2005, is hereby amended and restated this 21st day of
August 2008 between ING Investments, LLC, an Arizona limited liability company
(the “Manager”), and ING Investment Management Advisors B.V., an indirect wholly
owned subsidiary of ING Groep N.V., domiciled in The Hague, The
Netherlands
(the
“Sub-Adviser”) (the “Agreement”).
WHEREAS, ING Mutual Funds (the
“Fund”) is registered under the Investment Company Act of 1940, as amended (the
“1940 Act”), as an open-end, management investment company;
WHEREAS, the Fund is
authorized to issue separate series, each series having its own investment
objective or objectives, policies, and limitations; and
WHEREAS, the Fund may offer
shares of additional series in the future; and
WHEREAS, pursuant to two
Investment Management Agreements, each dated September 23, 2002, as amended (the
“Management Agreements”), copies of which have been provided to the Sub-Adviser,
the Fund has retained the Manager to render advisory and management services
with respect to certain of the Fund’s series; and
WHEREAS, pursuant to authority
granted to the Manager in the Management Agreements, the Manager wishes to
retain the Sub-Adviser to furnish investment advisory services to one or more of
the series of the Fund, and the Sub-Adviser is willing to furnish such services
to the Fund and the Manager; and
WHEREAS, the Board of Trustees
has authorized the Manager to enter into an Agreement with the
Sub-Adviser.
NOW, THEREFORE, in
consideration of the premises and the promises and mutual covenants herein
contained, it is agreed between the Manager and the Sub-Adviser as
follows:
1. Appointment. The
Manager hereby appoints the Sub-Adviser to act as the investment adviser and
manager to the series of the Fund set forth on Schedule
A hereto
(the
“Series”) for the periods and on the terms set forth in this
Agreement. The Sub-Adviser accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein
provided. In the event the Fund designates one or more series (other
than the Series) with respect to which the Manager wishes to retain the
Sub-Adviser to render investment advisory services hereunder, it shall notify
the Sub-Adviser in writing. If the Sub-Adviser is willing to render
such services, it shall notify the Manager in writing, whereupon such series
shall become a Series hereunder, and be subject to this Agreement.
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2. Sub-Adviser
Duties. Subject to the supervision of the Fund’s Board of
Trustees and the Manager, the Sub-Adviser will provide a continuous investment
program for the Series’ portfolio and determine in its discretion 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 Sub-Adviser 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, 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. From time to time, at the request
of the Manager, the Sub-adviser will cooperate with and assist a Transition
Manager, hired by the Manager, when the Series’ portfolio is part of a larger
transition of assets, provided that the Sub-Adviser will continue to have full
discretion with respect to the Series investment portfolio. To the
extent permitted by the investment policies of the Series, the Sub-Adviser shall
make decisions for the Series as to foreign currency matters and make
determinations as to and execute and perform foreign currency exchange contracts
on behalf of the Series. At the request of the Manager, the
Sub-Adviser will participate in standing instructions giving the Funds’
custodian authority to administer daily foreign currency exchange
transactions.
The
Sub-Adviser will provide the services under this Agreement in accordance with
the Series’ investment objective or objectives, policies, and restrictions as
stated in the Fund’s Registration Statement filed with the U.S. Securities and
Exchange Commission (the “SEC”), as amended, copies of which shall be sent to
the Sub-Adviser by the Manager prior to the commencement of this Agreement and
promptly following any such amendment. The Sub-Adviser further agrees
as follows:
(a) The
Sub-Adviser will conform with the 1940 Act and all rules and regulations
thereunder, all other applicable federal and state laws and regulations, with
any applicable procedures adopted by the Fund’s Board of Trustees of which the
Sub-Adviser has been sent a copy, and which apply to the duties of the
Sub-Adviser, and the provisions of the Registration Statement of the Fund filed
under the Securities Act of 1933 (the “1933 Act”) and the 1940 Act, as
supplemented or amended, of which the Sub-Adviser has received a copy, and with
the Manager’s portfolio manager operating policies and procedures as in effect
on the date hereof, as such policies and procedures may be revised or amended by
the Manager. In carrying out its duties under this Agreement, the
Sub-Adviser will comply with the following policies and procedures:
(i) The
Sub-Adviser will manage the Series so that it meets the income and asset
diversification requirements of Section 851 of the Internal Revenue
Code.
(ii) The
Sub-Adviser will have no duty to vote any proxy solicited by or with respect to
the issuers of securities in which assets of the Series are invested unless the
Manager gives the Sub-Adviser written instructions to the
contrary. The Sub-Adviser will immediately forward any proxy
solicited by or with respect to the issuers of securities in which assets of the
Series are invested to the Manager or to any agent of the Manager designated by
the Manager in writing.
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The
Sub-Adviser will make appropriate personnel available for consultation for the
purpose of reviewing with representatives of the Manager and/or the Board any
proxy solicited by or with respect to the issuers of securities in which assets
of the Series are invested. Upon request, the Sub-Adviser will submit
a written voting recommendation to the Manager for such proxies. In
making such recommendations, the Sub-Adviser shall use its good faith judgment
to act in the best interests of the Series. The Sub-Adviser shall
disclose to the best of its knowledge any conflict of interest with the issuers
of securities that are the subject of such recommendation including whether such
issuers are clients or are being solicited as clients of the Sub-Adviser or of
its affiliates.
(iii) In
connection with the purchase and sale of securities for the Series, the
Sub-Adviser will arrange for the timely transmission, as determined by the
portfolio accounting agent to enable the agent to accurately calculate the
Series’ daily net asset value, to the custodian and portfolio accounting agent
for the Series on a daily basis, such confirmation, trade tickets, and other
documents and information, including, but not limited to, Cusip, Sedol, or other
numbers that identify securities to be purchased or sold on behalf of the
Series, as may be reasonably necessary to enable the custodian and portfolio
accounting agent to perform its administrative and recordkeeping
responsibilities with respect to the Series. With respect to
portfolio securities to be settled through the Depository Trust Company, the
Sub-Adviser will arrange for the prompt transmission of the confirmation of such
trades to the Fund’s custodian and portfolio accounting agent.
(iv) The
Sub-Adviser will assist the administrator for the Fund in reviewing, determining
or confirming (including, if necessary, obtaining broker-quoted prices),
consistent with the procedures and policies stated in the Registration Statement
for the Fund or adopted by the Board of Trustees, the value of any portfolio
securities or other assets of the Series for which the administrator seeks
assistance from or identifies for review by the Sub-Adviser. The
parties acknowledge that the Sub-Adviser is not a custodian of the Series’
assets and will not take possession or custody of such assets.
(v) The
Sub-Adviser will provide the Manager, no later than the 20th day following the
end of each of the first three fiscal quarters of the Series and the 15th day
following the end of the Series’ fiscal year, a letter to shareholders (to be
subject to review and editing by the Manager) containing a discussion of those
factors referred to in Item 22(b) (7) of 1940 Act Form N-1A in respect of both
the prior quarter and the fiscal year to date.
(vi) The
Sub-Adviser will complete and deliver to the Manager a written compliance
checklist, a certified compliance acknowledgement report and the group of
reports listed below in a form provided by the Manager for each month by the
10th business day of the following month:
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1)
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Report
on Brokerage Commissions and Soft Dollar
Usage.
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2)
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Trade
Compliance reporting pertaining to Rules 17a-7, 17e-1, 10f-3 under the
1940 Act.
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3)
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Report
on Illiquid and Restricted Securities held in each
portfolio.
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4)
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Reports
required on Issuers Credit Ratings applicable to Rule 2a-7 under the 1940
Act.
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(vii)
The parties agree that in the event that the Manager or an affiliated person of
the Manager sends sales literature or other promotional material to the
Sub-Adviser for its approval and the Sub-Adviser has not commented within 10
business days, the Manager and its affiliated persons may use and distribute
such sales literature or other promotional material.
(b) The
Sub-Adviser will make available to the Fund and the Manager, promptly upon
request, the Series’ investment books and records maintained by the Sub-Adviser
(which shall not include the books and records maintained by the custodian or
portfolio accounting agent for the Fund) as are necessary to assist the Fund and
the Manager to comply with requirements of the 1940 Act and the Investment
Advisers Act of 1940 (the “Advisers Act”), as well as other applicable
laws. The Sub-Adviser will furnish to regulatory authorities having
the requisite authority over the Fund, the Manager or the Sub-Adviser any
information or reports not readily available at the custodian or the portfolio
accounting agent in connection with the services provided hereunder in respect
to the Series which may be requested in order to ascertain whether the
operations of the Fund are being conducted in a manner consistent with
applicable laws and regulations.
(c) The
Sub-Adviser will provide reports to the Manager for the Fund’s Board of Trustees
for consideration at meetings of the Board on the investment program for the
Series and the issuers and securities represented in the Series’ portfolio, and
will furnish the Fund’s Board of Trustees with respect to the Series such
periodic and special reports as the Trustees and the Manager may reasonably
request.
3. Broker-Dealer
Selection. The Sub-Adviser is authorized to make decisions to
buy and sell securities and other investments for the Series’ portfolio,
broker-dealer selection, and negotiation of brokerage commission rates in
effecting a security transaction. The Sub-Adviser’s primary
consideration in effecting a security transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
prospectus and/or statement of additional information for the Fund, 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, the experience and financial stability of the
broker-dealer involved, the quality of the service, the difficulty of execution,
and the execution capabilities and operational facilities of the firm involved,
and the firm’s risk in positioning a block of
securities. Accordingly, the price to a Series in any transaction may
be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Sub-Adviser in the
exercise of its fiduciary obligations to the Fund, by other aspects of the
portfolio execution services offered. Subject to such policies as the
Fund’s Board of Trustees or Manager may determine and consistent with Section
28(e) of the Securities Exchange Act of 1934, the Sub-Adviser shall not be
deemed to have acted unlawfully or to have breached any duty created by this
Agreement or otherwise solely by reason of its having caused a Series to pay a
broker-dealer for effecting a portfolio investment transaction in excess of the
amount of commission another broker-dealer would have charged for effecting that
transaction, if the Sub-Adviser determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer, viewed in terms of either that
particular transaction or the Sub-Adviser’s or the Manager’s overall
responsibilities with respect to the Series and to their respective other
clients as to which
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they
exercise investment discretion. The Sub-Adviser will consult with the
Manager to the end that portfolio transactions on behalf of a Series are
directed to broker-dealers that participate in commission recapture programs
benefiting the Fund, provided that neither the Sub-Adviser nor the Manager will
direct brokerage in recognition of the sale of Fund shares. To the
extent consistent with these standards, the Sub-Adviser is further authorized to
allocate the orders placed by it on behalf of a Series to the Sub-Adviser if it
is registered as a broker-dealer with the SEC, to an affiliated broker-dealer,
or to such brokers and dealers who also provide research or statistical
material, or other services to the Series, the Sub-Adviser, or an affiliate of
the Sub-Adviser. Such allocation shall be in such amounts and
proportions as the Sub-Adviser shall determine consistent with the above
standards, and the Sub-Adviser will report on said allocation monthly to the
Fund’s Board of Trustees indicating the broker-dealers to which such allocations
have been made and the basis therefor.
4. Disclosure about
Sub-Adviser. The Sub-Adviser has reviewed the most recent
Post-Effective Amendment to the Registration Statement for the Fund filed with
the SEC that contains disclosure about the Sub-Adviser, and represents and
warrants that, with respect to the disclosure about the Sub-Adviser or
information relating, directly or indirectly, to the Sub-Adviser, such
Registration Statement contains, as of the date hereof, no untrue statement of
any material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it
is a duly registered investment adviser under the Advisers Act and will maintain
such registration so long as this Agreement remains in effect. The
Sub-Adviser will provide the Manager with a copy of the Sub-Adviser’s Form ADV,
Part II annually or upon a material change or update.
5. Expenses. During
the term of this Agreement, the Sub-Adviser will pay all expenses incurred by it
and its staff for their activities in connection with its portfolio management
duties under this Agreement, including, but not limited to, reimbursement of
losses due to trade errors or compliance breaches. The Manager or the
Fund shall be responsible for all the expenses of the Fund’s
operations.
6. Compensation. For
the services provided to the Series, the Manager will pay the Sub-Adviser an
annual fee equal to the amount specified for such Series in Schedule
A hereto, payable monthly in arrears. The fee will be
appropriately prorated to reflect any portion of a calendar month that this
Agreement is not in effect among the parties. In accordance with the
provisions of the Management Agreements, the Manager is solely responsible for
the payment of fees to the Sub-Adviser, and the Sub-Adviser agrees to seek
payment of its fees solely from the Manager; provided, however, that if the Fund
fails to pay the Manager all or a portion of the management fee under said
Management Agreements when due, and the amount that was paid is insufficient to
cover the Sub-Adviser’s fee under this Agreement for the period in question,
then the Sub-Adviser may enforce against the Fund any rights it may have as a
third-party beneficiary under the Management Agreements and the Manager will
take all steps appropriate under the circumstances to collect the amount due
from the Fund.
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7. Compliance.
(a) The
Sub-Adviser agrees to use reasonable compliance techniques and policies and
procedures reasonably designed to prevent violations of the federal securities
laws as the Manager or the Board of Trustees may adopt, including any written
compliance procedures.
(b) The
Sub-Adviser agrees that it shall promptly notify the Manager and the Fund (1) in
the event that the SEC has censured the Sub-Adviser; placed limitations upon its
activities, functions or operations; suspended or revoked its registration as an
investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions, or (2) upon having a reasonable basis for
believing that the Series has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Internal Revenue
Code. The Sub-Adviser further agrees to notify the Manager and the
Fund promptly of any material fact known to the Sub-Adviser respecting or
relating to the Sub-Adviser that relates to Sub-Adviser’s performance
obligations under this Agreement and is not contained in the Registration
Statement or prospectus for the Fund (which describes the Series), or any
amendment or supplement thereto, or if any statement contained therein that
becomes untrue in any material respect.
(c) The
Manager agrees that it shall promptly notify the Sub-Adviser (1) in the event
that the SEC has censured the Manager or the Fund; placed limitations upon
either of their activities, functions, or operations; suspended or revoked the
Manager’s registration as an investment adviser; or has commenced proceedings or
an investigation that may result in any of these actions, or (2) upon having a
reasonable basis for believing that the Series has ceased to qualify or might
not qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code. The Manager further agrees to notify the Sub-Adviser
promptly of any material fact known to the Manager, respecting or relating to
the Manager, that relates to Sub-Adviser’s performance obligations under this
Agreement and is not contained in the Registration Statement or prospectus for
the Fund (which describes the Series), or any amendment or supplement thereto,
or if any statement contained therein that becomes untrue in any material
respect.
8. Books and
Records. The Fund and the Manager, or an investment adviser
designated by the Manager, shall have access at all reasonable times and on
reasonable notice to all records maintained by the Sub-Adviser. The
Sub-Adviser agrees that it will surrender copies of any such records to the
Funds promptly upon such Fund’s request provided that the Sub-Adviser shall keep
the originals of such records to the extent necessary for the Sub-Adviser to
comply with applicable laws, including Rule 31a-3 under the 1940
Act. The Sub-Adviser further agrees to preserve such records for such
time periods as may be prescribed by Rule 31a-2 under the 1940 Act, provided
that before disposing of any such records, Sub-Adviser will advise the Adviser
and deliver the same to Manager if so requested.
9. Cooperation;
Confidentiality. Each party to this Agreement agrees to
cooperate with the other party and with all appropriate governmental authorities
having the requisite jurisdiction (including, but not limited to, the SEC) in
connection with any investigation or inquiry relating to this Agreement or the
Fund. Subject to the foregoing, the Sub-Adviser shall treat as
confidential all information pertaining to the Fund and actions of the Fund, the
Manager and the Sub-Adviser, and the Manager shall treat as confidential and use
only in connection with the Series all information furnished to the Fund or the
Manager by the Sub-Adviser, in connection with its duties under the Agreement
except that the aforesaid information need not be treated as confidential if
required to be disclosed under applicable law, if generally available to the
public through means other than by disclosure by the Sub-Adviser or the Manager,
or if available from a source other than the Manager, Sub-Adviser or the
Fund.
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10. Non-Exclusivity. The
services of the Sub-Adviser to the Series and the Fund are not to be deemed to
be exclusive, and the Sub-Adviser shall be free to render investment advisory or
other services to others (including other investment companies) and to engage in
other activities.
11. Prohibited
Conduct. The Sub-Adviser may not consult with any other
sub-adviser of the Fund concerning transactions in securities or other assets
for any investment portfolio of the Fund, including the Series, except that such
consultations are permitted between the current and successor sub-advisers of
the Series in order to effect an orderly transition of sub-advisory duties so
long as such consultations are not concerning transactions prohibited by Section
17(a) of the 1940 Act.
12. Representations Respecting
Sub-Adviser. The Manager agrees that neither the Manager, nor
affiliated persons of the Manager, shall give any information or make any
representations or statements in connection with the sale of shares of the
Series concerning the Sub-Adviser or the Series other than the information or
representations contained in the Registration Statement, prospectus, or
statement of additional information for the Fund’s shares, as they may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved in
advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
13. Control. Notwithstanding
any other provision of the Agreement, it is understood and agreed that the Fund
shall at all times retain the ultimate responsibility for and control of all
functions performed pursuant to this Agreement and has reserved the right to
reasonably direct any action hereunder taken on its behalf by the
Sub-Adviser.
14. Liability. Except
as may otherwise be required by the 1940 Act or the rules thereunder or other
applicable law, the Manager agrees that the Sub-Adviser, any affiliated person
of the Sub-Adviser, and each person, if any, who, within the meaning of Section
15 of the 1933 Act controls the Sub-Adviser, (1) shall bear no responsibility
and shall not be subject to any liability for any act or omission respecting any
series of the Fund that is not a Series hereunder, (2) shall bear no
responsibility and shall not be subject to liability for the accuracy of any
information provided to the Sub-Adviser by another entity and shall incur no
liability in relying on such information, and (3) shall not be liable for, or be
subject to any damages, expenses, or losses in connection with, any act or
omission connected with or arising out of any services rendered under this
Agreement, except by reason of willful misfeasance, bad faith, or negligence in
the performance of the Sub-Adviser’s duties, or by reason of reckless disregard
of the Sub-Adviser’s obligations and duties under this Agreement.
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15. Indemnification.
(a) The
Manager agrees to indemnify and hold harmless the Sub-Adviser, any affiliated
person of the Sub-Adviser, and each person, if any, who, within the meaning of
Section 15 of the 1933 Act controls (“controlling person”) the Sub-Adviser (all
of such persons being referred to as “Sub-Adviser Indemnified Persons”) against
any and all losses, claims, damages, liabilities, or litigation (including legal
and other expenses) to which a Sub-Adviser Indemnified Person may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Manager’s responsibilities to the
Fund which (1) may be based upon the Manager’s negligence, willful misfeasance,
or bad faith in the performance of its duties (which could include a negligent
action or a negligent omission to act), or by reason of the Manager’s reckless
disregard of its obligations and duties under this Agreement, or (2) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus covering shares of the
Fund or any Series, or any amendment thereof or any supplement thereto, or the
omission or alleged omission to state therein a material fact known or which
should have been known to the Manager and was required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to the Manager or
the Fund or to any affiliated person of the Manager by a Sub-Adviser Indemnified
Person; provided however, that in no case shall the indemnity in favor of the
Sub-Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or negligence in the performance of its duties,
or by reason of its reckless disregard of obligations and duties under this
Agreement.
(b) Notwithstanding
Section 14 of this Agreement, the Sub-Adviser agrees to indemnify and hold
harmless the Fund, the Manager, any affiliated person of the Manager, and any
controlling person of the Manager (and Fund and all of such persons being
referred to as “Manager Indemnified Persons”) against any and all losses,
claims, damages, liabilities, or litigation (including legal and other expenses)
to which a Manager Indemnified Person may become subject under the 1933 Act,
1940 Act, the Advisers Act, under any other statute, at common law or otherwise,
arising out of the Sub-Adviser’s responsibilities as Sub-Adviser of the Series
which (1) may be based upon the Sub-Adviser’s negligence, willful misfeasance,
or bad faith in the performance of its duties (which could include a negligent
action or a negligent omission to act), or by reason of the Sub-Adviser’s
reckless disregard of its obligations and duties under this Agreement, or (2)
may be based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or prospectus covering the shares
of the Fund or any Series, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact known or which
should have been known to the Sub-Adviser and was required to be stated therein
or necessary to make the statements therein not misleading, if such a statement
or omission was made in reliance upon information furnished to the Manager, the
Fund, or any affiliated person of the Manager or Fund by the Sub-Adviser or any
affiliated person of the Sub-Adviser; provided, however, that in no case shall
the indemnity in favor of a Manager Indemnified Person be deemed to protect such
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, negligence in the performance of
its duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
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(c) The
Manager shall not be liable under Paragraph (a) of this Section 15 with respect
to any claim made against a Sub-Adviser Indemnified Person unless such
Sub-Adviser Indemnified Person shall have notified the Manager in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Sub-Adviser Indemnified Person (or after such Sub-Adviser Indemnified Person
shall have received notice of such service on any designated agent), but failure
to notify the Manager of any such claim shall not relieve the Manager from any
liability which it may have to the Sub-Adviser Indemnified Person against whom
such action is brought except to the extent the Manager is prejudiced by the
failure or delay in giving such notice. In case any such action is
brought against the Sub-Adviser Indemnified Person, the Manager will be entitled
to participate, at its own expense, in the defense thereof or, after notice to
the Sub-Adviser Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Sub-Adviser Indemnified Person. If the Manager
assumes the defense of any such action and the selection of counsel by the
Manager to represent the Manager and the Sub-Adviser Indemnified Person would
result in a conflict of interests and therefore, would not, in the reasonable
judgment of the Sub-Adviser Indemnified Person, adequately represent the
interests of the Sub-Adviser Indemnified Person, the Manager will, at its own
expense, assume the defense with counsel to the Manager and, also at its own
expense, with separate counsel to the Sub-Adviser Indemnified Person, which
counsel shall be satisfactory to the Manager and to the Sub-Adviser Indemnified
Person. The Sub-Adviser Indemnified Person shall bear the fees and
expenses of any additional counsel retained by it, and the Manager shall not be
liable to the Sub-Adviser Indemnified Person under this Agreement for any legal
or other expenses subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Manager shall not have the right to compromise
on or settle the litigation without the prior written consent of the Sub-Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Sub-Adviser Indemnified
Person.
(d) The
Sub-Adviser shall not be liable under Paragraph (b) of this Section 15 with
respect to any claim made against a Manager Indemnified Person unless such
Manager Indemnified Person shall have notified the Sub-Adviser in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Manager
Indemnified Person (or after such Manager Indemnified Person shall have received
notice of such service on any designated agent), but failure to notify the
Sub-Adviser of any such claim shall not relieve the Sub-Adviser from any
liability which it may have to the Manager Indemnified Person against whom such
action is brought except to the extent the Sub-Adviser is prejudiced by the
failure or delay in giving such notice. In case any such action is
brought against the Manager Indemnified Person, the Sub-Adviser will be entitled
to participate, at its own expense, in the defense thereof or, after notice to
the Manager Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person. If the Sub-Adviser
assumes the defense of any such action and the selection of counsel by the
Sub-Adviser to represent both the Sub-Adviser and the Manager Indemnified Person
would result in a conflict of interests and therefore, would not, in the
reasonable judgment of the Manager Indemnified Person, adequately represent the
interests of the Manager Indemnified Person, the Sub-Adviser will, at its own
expense, assume the defense with counsel to the Sub-Adviser and, also at its own
expense, with separate counsel to the Manager Indemnified Person, which counsel
shall be satisfactory to the Sub-Adviser and to the Manager Indemnified
Person. The Manager Indemnified Person shall bear the fees and
expenses of any additional counsel retained by it, and the Sub-Adviser shall not
be liable to the Manager Indemnified Person under this Agreement for any legal
or other expenses subsequently incurred by the Manager Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Sub-Adviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Manager Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Manager Indemnified
Person.
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16. Duration and
Termination.
With
respect to each Series, except for ING Emerging Countries Fund, 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. With respect to ING
Emerging Countries Fund, unless earlier terminated, shall continue in full force
and effect through November 30, 2009. 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 Fund, 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 Fund who are not parties to this
Agreement or “interested persons” (as defined in the 0000 Xxx) of the Fund 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 Fund’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. 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 Fund, 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 Fund who are not parties to this Agreement or “interested
persons” (as defined in the 0000 Xxx) of the Fund or the Manager, cast in person
at a meeting called for the purpose of voting on such approval.
-10-
Notwithstanding
the foregoing, this Agreement may be terminated with respect to one or more of
the Series covered by this Agreement: (a) by the Manager at any time, upon sixty
(60) days’ written notice to the Sub-Adviser and the Fund, (b) at any time
without payment of any penalty by the Fund, by the Fund’s Board of Trustees or a
majority of the outstanding voting securities of the Series, upon sixty (60)
days’ written notice to the Manager and the Sub-Adviser, or (c) by the
Sub-Adviser upon three (3) months’ written notice unless the Fund or the Manager
requests additional time to find a replacement for the Sub-Adviser, in which
case the Sub-Adviser shall allow the additional time requested by the Fund or
Manager not to exceed three (3) additional months beyond the initial three-month
notice period; provided, however, that the Sub-Adviser may terminate this
Agreement at any time without penalty, effective upon written notice to the
Manager and the Fund, in the event either the Sub-Adviser (acting in good faith)
or the Manager ceases to be registered as an investment adviser under the
Advisers Act or otherwise becomes legally incapable of providing investment
management services pursuant to its respective contract with the Fund, or in the
event the Manager becomes bankrupt or otherwise incapable of carrying out its
obligations under this Agreement, or ceases to be a wholly owned subsidiary of
ING Groep N.V., or in the event that the Sub-Adviser does not receive
compensation for its services from the Manager or the Fund as required by the
terms of this Agreement.
Upon
termination for any reason, the Sub-Adviser shall forthwith deliver to the Fund
all original written records of the Fund where possible and copies of said
records if originals are not available. Sub-Adviser may, at its own
expense, make and retain a copy of such records. This Agreement shall
automatically terminate in the event of its assignment (as such term is
described in the 1940 Act). In the event this Agreement is terminated
or is not approved in the manner described above, the Sections or Paragraphs
numbered 8, 9, 12, 13, 14 and 15 of this Agreement shall remain in effect, as
well as any applicable provision of this Section numbered 16 and, to the extent
that only amounts are owed to the Sub-Adviser as compensation for services
rendered while the agreement was in effect, Section 6.
(a) Notices.
Except
as otherwise provided, any notice given hereunder shall be in writing and shall
be given by facsimile or other means of electronic communication or by delivery
as hereafter provided. Any notice if sent by means of electronic communication
shall be deemed to have been received upon express acknowledgement, and notice
delivered by hand or sent by internationally recognized overnight courier
service shall be deemed to have been received at the time of delivery to the
applicable address set forth below or at such other address as a party may from
time to time specify in writing to the other party.
If
to the Fund:
0000
Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxx, Xx.
-11-
If
to the Manager:
ING
Investments, LLC
0000
Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx
If
to the Sub-Adviser:
ING
Investment Management Advisors B.V.
Xxxxxxx Xxxxxxxxxxx 00
Xxx
Xxxxx, Xxx Xxxxxxxxxxx
Attention: Xxxx
Xxxxxxx
17. 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 Fund. Otherwise, a
written amendment of this Agreement is effective upon the approval of the Board
of Trustees and the Sub-Adviser.
18. Miscellaneous.
(a) This
Agreement shall be governed by the laws of the State of Arizona, provided that
nothing herein shall be construed in a manner inconsistent with the 1940 Act,
the Advisers Act or rules or orders of the SEC thereunder, and without regard
for the conflicts of laws principle thereof. The term “affiliate” or
“affiliated person” as used in this Agreement shall mean “affiliated person” as
defined in Section 2(a)(3) of the 0000 Xxx.
(b) The
Manager and the Sub-Adviser acknowledge that the Fund enjoys the rights of a
third-party beneficiary under this Agreement, and the Manager acknowledges that
the Sub-Adviser enjoys the rights of a third party beneficiary under the
Management Agreements.
(c) The
captions of this Agreement are included for convenience only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect.
(d) This
Agreement may be assigned by any party only with the prior written consent of
the other parties.
(e) If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby, and to this extent, the provisions of this Agreement shall
be deemed to be severable.
-12-
(f) Nothing
herein shall be construed as constituting the Sub-Adviser as an agent or
co-partner of the Manager, or constituting the Manager as an agent or co-partner
of the Sub-Adviser.
(g) This
Agreement may be executed in counterparts.
-13-
IN WITNESS WHEREOF, the
parties hereto have caused this instrument to be executed as of the day and year
first above written.
|
ING
INVESTMENTS, LLC
|
||
|
By:
|
/s/ Xxxx Xxxxx
|
|
|
Xxxx
Xxxxx
|
||
|
Senior
Vice President
|
||
|
ING
INVESTMENT MANAGEMENT ADVISORS B.V.
|
||
|
By:
|
/s/ X. Xxxxxxxxx
|
|
|
Name:
|
X. Xxxxxxxxx
|
|
|
Title:
|
Managing Director
|
|
|
By:
|
/s/ illegible
|
|
|
Name:
|
illegible
|
|
|
Title:
|
M.D.
|
|
-14-
SCHEDULE
A
with
respect to the
AMENDED
AND RESTATED SUB-ADVISORY AGREEMENT
between
ING
INVESTMENTS, LLC
and
ING
INVESTMENT MANAGEMENT ADVISORS B.V.
|
Series
|
Annual Sub-Adviser
Fee
(as a percentage of
average daily net assets)
|
|
ING
Emerging Countries Fund
|
0.42%
|
|
ING
Emerging Markets Fixed Income Fund
|
0.35%
on the first $250 million;
0.30%
on the next $250 million; and
0.25%
thereafter
|
|
ING
Global Equity Dividend Fund
|
0.20%
|
|
ING
Index Plus International Equity Fund
|
0.20%
|
|
ING
International Equity Dividend Fund
|
0.20%
|
|
ING
International Value Opportunities Fund
|
0.25%
on the first $1 billion; and
0.20%
thereafter
|
|
ING
Russia Fund
|
0.60%
|
-15-
