AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
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AMENDMENT NO. 2 TO
THIS AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT (the “Amendment”) is made as of the 19th day of October, 2010 (the “Effective Date”), by and among Fidelity Rutland Square Trust II (the “Fidelity Trust”), a statutory trust organized under the laws of Delaware, on behalf of each of the series identified on Schedule A (each, a “Fund” and collectively, the “Funds”) and each corporation or trust identified on Schedule B of the Agreement (each, an “Underlying Company”), on behalf of its respective series identified on Schedule B of the Agreement (each, an “Underlying Fund” and collectively, the “Underlying Funds”).
WHEREAS, the Fidelity Rutland Square Trust, ING Series Fund, Inc. and ING Equity Trust have entered into that certain Participation Agreement dated as of September 11, 2008 (the “Initial Agreement”);
WHEREAS, the Initial Agreement was revised by Amendment No. 1 to Participation Agreement, dated as of February 27, 2009, by and among Fidelity Rutland Square Trust, ING Series Fund, Inc., ING Equity Trust and ING Mutual Funds (the “Amended Agreement” and, together with the Initial Agreement, the “Agreement”);
WHEREAS, each series of Fidelity Rutland Square Trust merged with and into a shell fund organized as a series of the Fidelity Trust on August 23, 2010 (collectively, the “Reorganizations”);
WHEREAS, the parties to the Amendment acknowledge that the Reorganizations constituted an assignment under Section 6.1 of the Agreement, which requires the written consent of the Underlying Trust;
WHEREAS, the Fidelity Trust is entitled to rely on the Fidelity Order as an investment company that is part of the same group of investment companies, as defined in Section 12(d)(1)(G)(ii) of the 1940 Act, as an Applicant and is advised by the Adviser; and
WHEREAS, the parties to this Amendment desire to acknowledge the assignment and amend the Agreement in order to modify certain provisions stated therein.
NOW, THEREFORE, in consideration of the mutual covenants and premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to amend the Agreement as follows:
I. AMENDMENT TO AGREEMENT
(a) Amendment to Schedule A. Schedule A of the Agreement is hereby deleted in its entirety and replaced with the form of Schedule A attached hereto and incorporated herein by reference.
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II. MISCELLANEOUS
(a) No Further Amendment. Except as expressly amended hereby, the Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Agreement.
(b) Representations and Warranties. All representations and warranties contained in the Agreement are true and correct in all respects as of the Effective Date as though made at and as of the Effective Date by the parties to this Amendment.
(c) Effect of Amendment. This Amendment shall form a part of the Agreement for all purposes and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, any reference to the Agreement shall be deemed a reference to the Agreement as amended hereby. This Amendment shall be deemed to be in full force and effect from and after the execution of this Amendment by the parties hereto.
(d) Governing Law. This Amendment shall be governed by and construed in accordance with the laws governing the Agreement.
(e) Separability Clause. If any provision of this Amendment is determined to be invalid, illegal, in conflict with any law or otherwise unenforceable, the remaining provisions hereof and the provisions of the Agreement will be considered severable and will not be affected thereby, and every remaining provision hereof and provision of the Agreement will remain in full force and effect and will remain enforceable to the fullest extent permitted by applicable law.
(f) Counterparts. This Amendment may be executed in two or more counterparts, each of which is deemed an original but all of which together constitute one and the same instrument.
(g) Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above and hereby consent to the assignment of the Agreement resulting from the Reorganizations as of August 23, 2010.
| FIDELITY RUTLAND SQUARE TRUST II, on behalf of each of the Funds listed on Schedule A, Severally and Not Jointly | ||
| /s/ Xxxxxxx Xxxxxx | ||
| Name: | Xxxxxxx Xxxxxx | |
| Title: | President & Treasurer | |
| ING SERIES FUND, INC., on behalf of each of the Funds listed on Schedule B, Severally and Not Jointly | ||
| /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | |
| Title: | Senior Vice President | |
| ING EQUITY TRUST, on behalf of each of the Funds listed on Schedule B, Severally and Not Jointly | ||
| /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | |
| Title: | Senior Vice President | |
| ING MUTUAL FUNDS, on behalf of each of the Funds listed on Schedule B, Severally and Not Jointly | ||
| /s/ Xxxx Xxxxx | ||
| Name: | Xxxx Xxxxx | |
| Title: | Senior Vice President | |
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Schedule A
Fidelity Trust and Funds
Fidelity Trust
Fidelity Rutland Square Trust II (“XX XX”)
Funds
Strategic Advisers® Small-Mid Cap Fund, a series of XX XX
Strategic Advisers® International Fund, a series of XX XX
Strategic Advisers® U.S. Opportunity Fund, a series of XX XX
Strategic Advisers® Core Income Fund, a series of XX XX
Strategic Advisers® Income Opportunities Fund, a series of XX XX
Strategic Advisers® Core Fund, a series of XX XX
Strategic Advisers® Growth Fund, a series of XX XX
Strategic Advisers® Value Fund, a series of XX XX
Strategic Advisers® Emerging Markets Fund, a series of XX XX
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Schedule B
Underlying Companies and Underlying Funds
Underlying Companies
ING Series Fund, Inc. (“ISFI”)
ING Equity Trust (“IET”)
ING Mutual Funds (“IMF”)
Underlying Funds
ING Small Company Fund, a series of ISFI
ING SmallCap Opportunities Fund, a series of IET
ING International Real Estate Fund, a series of IMF
ING Global Real Estate Fund, a series of IMF
