EXHIBIT d(3)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 2nd day of June, 2003 between ING
Investments, LLC, an Arizona limited liability company (the "Manager"), and
Wellington Management Company, LLP, a Massachusetts limited liability
partnership (the "Sub-Adviser").
WHEREAS, ING Equity Trust and ING Variable Products Trust
(each a "Trust," collectively the "Trusts") are registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), each as an open-end,
management investment company; and
WHEREAS, the Trusts are authorized to issue separate series,
each series having its own investment objective or objectives, policies, and
limitations; and
WHEREAS, the Trusts may offer shares of additional series in
the future; and
WHEREAS, pursuant to Investment Management Agreements, dated
September 23, 2002 and April 30, 2001, as amended, respectively (the "Management
Agreements"), copies of which have been provided to the Sub-Adviser, the Trusts
have retained the Manager to render advisory and management services with
respect to certain of the Trusts' 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 Trusts, and the
Sub-Adviser is willing to furnish such services to the Trusts and the Manager;
and
WHEREAS, the Trusts' Boards of Trustees (each a "Board,"
collectively, the "Boards") have 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 sub-adviser and manager to the series of the Trusts (or
portions thereof) set forth on Schedule A hereto (the "Series"), as such
schedule may be amended from time to time, 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 a Trust 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
Trusts' Boards and the Manager, the Sub-Adviser will provide a continuous
investment program for each Series'
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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 a 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 a Series' investment objective or
objectives, policies, and restrictions as stated in the Trusts' Registration
Statements 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 Trusts'
Boards of Trustees of which the Sub-Adviser has been sent a copy, and the
provisions of the Registration Statements of the Trusts 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 diversification requirements of Section 851 of the Internal Revenue
Code.
(ii) 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, or other documents and information, including,
but not limited to, Cusip, Cedel, or other numbers that identify securities to
be purchased or sold on behalf of the Series, as may be reasonably necessary to
enable the custodian 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 Series' custodian and portfolio accounting
agent.
(iii) The Sub-Adviser will assist the custodian and
portfolio accounting agent for the Series in determining or confirming,
consistent with the procedures and policies stated in the Registration
Statements for the Trusts or adopted by the Boards of Trustees, the value of any
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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.
(iv) The Sub-Adviser will provide the Manager, no later
than the 12th 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-l A in respect of both the prior quarter and the
fiscal year to date.
(v) 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 12th business day checklist in of the following month.
(b) The Sub-Adviser will make available to the Trusts 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
Series) as are necessary to assist the Series 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 Series are being
conducted in a manner consistent with applicable laws and regulations.
(c) The Sub-Adviser will provide reports to the Trusts'
Boards of Trustees for consideration at meetings of the Boards of Trustees on
the investment program for each Series and the issuers and securities
represented in each Series' portfolio, and will furnish the Trusts' Boards 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 each Trust, or
determined in consultation with the Manager, which may 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-
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Adviser in the exercise of its fiduciary obligations to the Trusts, on behalf of
a Series, by other aspects of the portfolio execution services offered. Subject
to such policies as the Trusts' Boards 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 they exercise investment discretion. 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 Trusts' Boards of
Trustees indicating the broker-dealers to which such allocations have been made
and the basis therefor.
On occasions when the Sub-Adviser deems the purchase or sale of a security to be
in the best interest of the Series as well as other clients of the Sub-Adviser,
it may allocate such transactions in the manner it considers to be the most
equitable and consistent with its fiduciary obligation to the Series and to such
other clients.
4. Disclosure about Sub-Adviser. The Sub-Adviser has reviewed
the most recent Post-Effective Amendment to the Registration Statement for each
Trust 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 Statements contain, 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 material changes to Form ADV are 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 Trusts shall be responsible for all the expenses
of the Series' operations.
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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 by the 10th
business day of the following month. 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 a Trust fails to pay the Manager all or
a portion of the management fee for a Series under said Management Agreement
when due, and the amount that was paid is insufficient to cover the portion of
the Sub-Adviser's fee for that series (determined by prorating among the Series
under this Agreement by relative net assets) under this Agreement for the period
in question, then the Sub-Adviser may enforce against the Trust 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 Trust.
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,
Microsoft 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.
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8. Compliance.
(a) The Sub-Adviser agrees to use reasonable compliance
techniques, including any written compliance procedures.
(b) The Sub-Adviser agrees that it shall promptly notify the
Manager and the Trusts (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 Trusts 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 a Trust (which describes the Series),
or any amendment or supplement thereto, or of 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 a Trust;
placed limitations upon any 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 a Series has
ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code.
(d) The Sub-Adviser is prohibited from consulting with other
sub-advisers to the Series or other sub-advisers to a series under common
control with the Series concerning a Series' transactions in securities or other
assets.
9. Books and Records. The Sub-Adviser hereby agrees that
all records which it maintains for a Series are the property of the respective
Trust and further agrees to surrender promptly to the Trust any of such records
upon the Trust'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 subparagraphs (b)(5), (6), (7), (9), (10) and (11)
and paragraph (f) of 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 a Trust. Subject to the foregoing, the Sub-Adviser shall treat
as confidential all information pertaining to the Trusts and actions of the
Trusts, the Manager and the Sub-Adviser, and the Manager shall treat as
confidential and use only in
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connection with the Series all information furnished to a Trust 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 Trusts.
11. 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 a Trust's
shares, as they may be amended or supplemented from time to time, or in reports
or proxy statements for a Trust, or in sales literature or other promotional
material approved in advance by the Sub-Adviser, except with the prior
permission of the Sub-Adviser.
12. Control. Notwithstanding any other provision of the
Agreement, it is understood and agreed that the Trusts shall at all times retain
the ultimate responsibility for and control of all functions performed pursuant
to this Agreement and have reserved the right to reasonably direct any action
hereunder taken on its behalf by the Sub-Adviser.
13. 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 a Trust that is not a
Series hereunder, and (2) 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.
14. 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 a Trust 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
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material fact contained in the Registration Statement or prospectus covering
shares of a Trust 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 a Trust 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 gross
negligence in the performance of its duties, or by reason of its reckless
disregard of obligations and duties under this Agreement.
(b) Notwithstanding Section 13 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 a
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 regarding the Sub-Adviser, or the Sub-Adviser's past performance
contained in the Registration Statement or prospectus covering the shares of a
Trust 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, a Trust, or any
affiliated person of the Manager or Trust 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, gross 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 14 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
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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 14 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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15. Duration And Termination.
(a) This Agreement shall become effective on the date
first indicated above, subject to the condition that each Trust's Board,
including a majority of those Trustees who are not interested persons (as such
term is defined in the 0000 Xxx) of the Manager or the Sub-Adviser, and the
shareholders of each Series, shall have approved this Agreement. Unless
terminated as provided herein, this Agreement shall remain in full force and
effect with respect to each Series until the Reapproval Date set forth for such
Series on Schedule A, and continue on an annual basis thereafter with respect to
each Series covered by this Agreement; provided that such annual continuance is
specifically approved each year by (a) the Board of each Trust, or by the vote
of a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of each Series, and (b) the vote of a majority of those Trustees who are not
parties to this Agreement or interested persons (as such term is defined in the
0000 Xxx) of any such party to this Agreement 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 each Trust, 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: (a) by the Manager at any time, upon sixty (60) days' written
notice to the Sub-Adviser and the Trust, (b) at any time without payment of any
penalty by a Trust, by the Trust's Board or a majority of the outstanding voting
securities of a 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 a Trust 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 Trust 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 Trust, 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 Trust, 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 Trust 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 Trust, 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, 11, 12, 13 and 14 of
this Agreement shall remain in effect, as well as
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any applicable provision of this Section numbered 15 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 a Trust:
ING Equity Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
ING Variable Products Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
If to the Sub-Adviser:
Wellington Management Company, LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Legal Services
16. 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 with respect to a Series until approved by an affirmative vote of (i)
the holders of a majority of the outstanding voting securities of the Series,
and (ii) the Trustees of each Trust, including a majority of the Trustees of the
Trusts who are not interested persons of any party to this Agreement, cast in
person at a meeting called for the purpose of voting on such approval, if such
approval is required by applicable law.
17. 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
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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 each
Trust 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) To the extent permitted under Section 15 of this
Agreement, 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.
(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.
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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/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
WELLINGTON MANAGEMENT COMPANY, LLP
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Xxxxxxxx X. Xxxxxx
Title: Senior Vice President and Partner
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SCHEDULE A
WITH RESPECT TO THE
SUB-ADVISORY AGREEMENT
DATED: JUNE 2, 2003
BETWEEN
ING INVESTMENTS, LLC
AND
WELLINGTON MANAGEMENT COMPANY, LLP
ANNUAL
SUB-ADVISER FEE* LAST CONTINUED/
(AS A PERCENTAGE OF AVERAGE APPROVED BY
SERIES DAILY NET ASSETS) BOARD REAPPROVAL DATE
-----------------------------------------------------------------------------------------------------
ING LargeCap
Growth Fund 0.45% - First $100 million
----------------- 0.30% -Next $1.4 billion February 25, 2003 September 1, 2004
ING VP LargeCap 0.25% -Over $1.5 billion
Growth Portfolio
-----------------------------------------------------------------------------------------------------
------------------
* For purposes of calculating fees under this Agreement, the assets of the
Series shall be aggregated with the portion of the assets of any other
affiliated accounts of the Manager managed by the Sub-Adviser in a similar
investment mandate (together, the "Aggregated Assets"). The Aggregated Assets
will be applied to the above schedule and the resulting fee shall be prorated
back to the Series and other affiliated accounts accordingly.
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