(d)(12)
SUB-ADVISORY AGREEMENT
ING EQUITY TRUST
AGREEMENT made this 29th day of March 2007 between ING Investments, LLC, an
Arizona limited liability company (the "Manager"), and Xxxxx Xxxxxxxx Xxxxxxx
Investment Management, LLC, a California limited liability company (the
"Sub-Adviser").
WHEREAS, ING Equity Trust (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 a Second Amended and Restated Investment Management
Agreement, dated February 1, 2005, as amended (the "Management Agreement"), a
copy of which has 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
Agreement, 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.
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.
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 each Series' portfolio and determine in its discretion the
composition of the assets of each 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 each 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. To the extent permitted by the investment policies of each
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. The Sub-Adviser will
provide the services under this Agreement in accordance with each Series'
investment objective or objectives, policies, and restrictions as stated in the
Fund's Registration Statement filed with the Securities and Exchange Commission
("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 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 and
agreed to by the Sub-Adviser. In carrying out its duties under the
Sub-Adviser Agreement, the Sub-Adviser will comply with the following
policies and procedures:
(i) The Sub-Adviser will manage each 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.
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.
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(iii) In connection with the purchase and sale of securities for each
Series, the Sub-Adviser will arrange for the transmission 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 record
keeping 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 custodian and portfolio
accounting agent for the Fund in determining or confirming, 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
custodian and portfolio accounting agent 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
10/th/ business day following the end of each Series' semi-annual period
and 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 5(a) 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 in a form provided by the Manager for each
month by the 10/th/ business day of the following month.
(b) The Sub-Adviser will complete and deliver to the Manager by the
10/th/ business day of each month a written report on each Series of the
Fund that contains the following information as of the immediately previous
month's end.
(i) A performance comparison to the Series benchmark listed in the
prospectus as well as a comparison to other mutual funds as listed in
the rankings prepared by Lipper Analytical Services, Inc., Morningstar,
Inc., or similar independent services that monitor the performance of
mutual funds or with other appropriate indexes of investment securities;
(ii) Composition of the assets of each Series' portfolio and the
impact of key portfolio holdings and sector concentrations on the
Series; and
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(iii) Confirmation of each Series' current investment objective and
Sub-Adviser's projected plan to realize the Series' investment
objectives.
(c) The Sub-Adviser will contact Morningstar to clarify any style box
conflicts with each Series' style and the anticipated timeframe in which
Morningstar will remedy such conflicts, if any.
(d) The Sub-Adviser will make available to the Fund and the Manager,
promptly upon request, any of the Series' investment records and ledgers
maintained by the Sub-Adviser (which shall not include the records and
ledgers 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 any
information or reports in connection with such services 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.
(e) The Sub-Adviser will provide reports to the Fund's Board of Trustees
for consideration at meetings of the Board of Trustees on the investment
program for each Series and the issuers and securities represented in each
Series' portfolio, and will furnish the Fund's Board of Trustees with
respect to each 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 each 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, and determined in
consultation with the Manager, 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
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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 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 on the basis of criteria reasonably considered appropriate by
the Manager. 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
regularly 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 at the time the Form ADV is filed with the SEC.
5. Expenses. During the term of this Agreement, the Sub-Adviser will pay all
expenses incurred by it and its staff and for their activities in connection
with its portfolio management duties under this Agreement. The Manager or the
Fund shall be responsible for all the expenses of the Fund's operations. In
addition, if the Fund is required, under applicable law, to supplement the
Registration Statement because of a change requested by the Sub-Adviser, the
Sub-Adviser will reimburse the Fund and/or the Manager for the cost of
preparing, printing and distributing such supplement, unless the Sub-Adviser is
requesting the change in order to comply with an applicable law, rule or
regulation.
6. Compensation. For the services provided to each 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 Agreement, 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 Agreement
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 Agreement and the Manager will
take all steps appropriate under the circumstances to collect the amount due
from the Fund.
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7. Marketing Materials.
(a) During the term of this Agreement, the Sub-Adviser agrees to furnish
the Manager at its principal office for prior review and approval by the
Manager all written and/or printed materials, including but not limited to,
PowerPoint(R) or slide presentations, news releases, advertisements,
brochures, fact sheets and other promotional, informational or marketing
materials (the "Marketing Materials") for internal use or public
dissemination, that are produced or are for use or reference by the
Sub-Adviser, its affiliates or other designees, broker-dealers or the public
in connection with the Series, and Sub-Adviser shall not use any such
materials if the Manager reasonably objects in writing within five business
days (or such other period as may be mutually agreed) after receipt thereof.
Marketing Materials may be furnished to the Manager by first class or
overnight mail, facsimile transmission equipment, electronic delivery or
hand delivery.
(b) During the term of this Agreement, the Manager agrees to furnish the
Sub-Adviser at its principal office all prospectuses, proxy statements,
reports to shareholders, or Marketing Materials prepared for distribution to
shareholders of each Series, or the public that refer to the Sub-Adviser in
any way, prior to the use thereof, and the Manager shall not use any such
materials if the Sub-Adviser reasonably objects in writing within five
business days (or such other period as may be mutually agreed) after receipt
thereof. The Sub-Adviser's right to object to such materials is limited to
the portions of such materials that expressly relate to the Sub-Adviser, its
services and its clients. The Manager agrees to use its reasonable best
efforts to ensure that materials prepared by its employees or agents or its
affiliates that refer to the Sub-Adviser or its clients in any way are
consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph. Marketing Materials may
be furnished to the Sub-Adviser by first class or overnight mail, facsimile
transmission equipment, electronic delivery or hand delivery.
8. Compliance.
(a) The Sub-Adviser agrees to use reasonable compliance techniques 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 (i) 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
(ii) 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 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.
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(c) The Manager agrees that it shall promptly notify the Sub-Adviser
(i) 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 (ii) 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.
9. Books and Records. The Sub-Adviser hereby agrees that all records which
it maintains for the Series are the property of the Fund and further agrees to
surrender promptly to the Fund any of such records upon the Fund's or the
Manager's request in compliance with the requirements of Rule 31a-3 under the
1940 Act, although the Sub-Adviser may, at its own expense, make and retain a
copy of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-l under the 1940 Act.
10. 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.
11. 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.
12. 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.
13. 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
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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.
14. 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.
15. 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
(a) 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, and (b) shall not be liable for, or 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 gross 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.
16. 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 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.
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(b) Notwithstanding Section 15 of this Agreement, the Sub-Adviser agrees
to indemnify and hold harmless the Manager, any affiliated person of the
Manager, and any controlling person of the Manager (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.
(c) The Manager shall not be liable under Paragraph (a) of this
Section 16 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-
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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 16 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.
17. Duration and Termination.
(a) 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,
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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.
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 Fund, unless such approval shall be required by
any other applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated with
respect to any Series covered by this Agreement: (i) by the Manager at any
time, upon sixty (60) days' written notice to the Sub-Adviser and the Fund,
(ii) 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 each
Series, upon sixty (60) days' written notice to the Manager and the
Sub-Adviser, or (iii) 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
11
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 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.
In the event of termination for any reason, all records of each Series
for which the Agreement is terminated shall promptly be returned to the
Manager or the Fund, free from any claim or retention of rights in such
record by the Sub-Adviser, although the 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 9, 10, 13,
14, 15 and 16 of this Agreement shall remain in effect, as well as any
applicable provision of this Section numbered 17 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.
(b) Notices. Any notice must be in writing and shall be sufficiently
given (1) when delivered in person, (2) when dispatched by telegram or
electronic facsimile transfer (confirmed in writing by postage prepaid first
class air mail simultaneously dispatched), (3) when sent by internationally
recognized overnight courier service (with receipt confirmed by such
overnight courier service), or (4) when sent by registered or certified
mail, to the other party at the address of such party set forth below or at
such other address as such party may from time to time specify in writing to
the other party.
If to the Fund:
ING Equity Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
If to the Sub-Adviser:
Xxxxx Xxxxxxxx Xxxxxxx Investment Management, LLC
0000 Xxxxxx xx xxx Xxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, CFO
18. 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, and no amendment of this Agreement shall be effective
until approved as required by applicable law.
12
19. 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 Agreement.
(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) To the extent permitted under Section 17 of this Agreement, this
Agreement may only be assigned by any party 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.
(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
XXXXX XXXXXXXX XXXXXXX
INVESTMENTMANAGEMENT, LLC
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: CFO
