Exhibit (d.1)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is entered into as of the ____ day of __________, 2003 by and
between ING LIFE INSURANCE AND ANNUITY COMPANY, a Connecticut corporation (the
"Adviser") and ING PARTNERS, INC., a Maryland corporation (the "Company").
W I T N E S S E T H
WHEREAS, the Company is registered with the Securities and Exchange Commission
(the "Commission") as an open-end, diversified, management investment company
under the Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Company offers the separate Series listed on the attached Schedule
A ("Initial Series") and the Company may, from time to time, offer shares
representing interests in one or more additional Series ("Additional Series",
referred to collectively with the Initial Series, as the "Series"); and
WHEREAS, the Adviser is registered with the Commission as an investment adviser
under the Investment Advisers Act of 1940 (the "Advisers Act"), and is in the
business of acting as an investment adviser; and
WHEREAS, the Company, on behalf of the Series listed on Schedule A, and the
Adviser desire to enter into an agreement to provide for investment advisory and
management services for the Company on the terms and conditions hereinafter set
forth;
NOW THEREFORE, the parties agree as follows:
I. APPOINTMENT AND OBLIGATIONS OF THE ADVISER
Subject to the terms and conditions of this Agreement and the policies and
control of the Company's Board of Directors (the "Board"), the Company, on
behalf of the Series, hereby appoints the Adviser to serve as its investment
adviser, to provide the investment advisory services set forth below in Section
II. The Adviser agrees that, except as required to carry out its duties under
this Agreement or otherwise expressly authorized, it is acting as an independent
contractor and not as an agent of the Company and has no authority to act for or
represent the Company in any way.
II. DUTIES OF THE ADVISER
In carrying out the terms of this Agreement, the Adviser shall do the following:
1. supervise all aspects of the operations of the Company;
2. select the securities to be purchased, sold or exchanged by the
Series or otherwise represented in the Series' investment
portfolio, place trades for all such securities and regularly
report thereon to the Board;
3. formulate and implement continuing programs for the purchase and
sale of securities and regularly report thereon to the Board;
4. obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data,
domestic, foreign or otherwise, whether affecting the economy
generally, the Series, securities held by or under consideration
for the Series, or the issuers of those securities;
5. provide economic research and securities analyses as the Adviser
considers necessary or advisable in connection with the Adviser's
performance of its duties hereunder;
6. obtain the services of, contract with, and provide instructions to
custodians and/or subcustodians of the Series' securities,
transfer agents, dividend paying agents, pricing services and
other service providers as are necessary to carry out the terms of
this Agreement;
7. prepare financial and performance reports, calculate and report
daily net asset values, and prepare any other financial data or
reports, as the Adviser from time to time, deems necessary or as
are requested by the Board; and
8. take any other actions which appear to the Adviser and the Board
necessary to carry into effect the purposes of this Agreement.
III. REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of the Adviser
Adviser hereby represents and warrants to the Company as follows:
1. Due Incorporation and Organization. The Adviser is duly
organized and is in good standing under the laws of the State
of Connecticut and is fully authorized to enter into this
Agreement and carry out its duties and obligations hereunder.
2. Registration. The Adviser is registered as an investment
adviser with the Commission under the Advisers Act. The
Adviser shall maintain such registration in effect at all
times during the term of this Agreement.
3. Best Efforts. The Adviser at all times shall provide its best
judgment and effort to the Series in carrying out its
obligations hereunder.
B. Representations and Warranties of the Company
The Company, on behalf of the Series, hereby represents and warrants to
the Adviser as follows:
1. Due Incorporation and Organization. The Company has been duly
incorporated under the laws of the State of Maryland and it is
authorized to enter into this Agreement and carry out its
obligations hereunder.
2. Registration. The Company is registered as an investment
company with the Commission under the 1940 Act and shares of
the Series are registered or qualified for offer and sale to
the public under the Securities Act of 1933 (the "1933 Act")
and all applicable state securities laws. Such registrations
or qualifications will be kept in effect during the term of
this Agreement.
IV. DELEGATION OF RESPONSIBILITIES
A. Appointment of Subadviser(s)
Subject to the approval of the Board, the Adviser may enter into a
Subadvisory Agreement to engage one or more Subadvisers (the
"Sub-adviser") to the Adviser with respect to each Series.
B. Duties of Subadviser
Under a Subadvisory Agreement, the Subadviser may be delegated some or
all of the following duties of the Adviser:
1. determine which securities from which issuers shall be
purchased, sold or exchanged by the Series or otherwise
represented in the Series' investment portfolio, place trades
for all such securities, select brokers or dealers for the
execution thereof, and regularly report thereon to the Board;
2. formulate and implement continuing programs for the purchase
and sale of the securities of such issuers and regularly
report thereon to the Board;
3. obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data,
domestic, foreign or otherwise, whether affecting the economy
generally, the Series, securities held by or under
consideration for the Series, or the issuers of those
securities;
4. provide economic research and securities analyses as the
Adviser considers necessary or advisable in connection with
the Adviser's performance of its duties hereunder;
5. give instructions to the custodian and/or sub-custodian of the
Series appointed by the Board, as to deliveries of securities,
transfers of currencies and payments of cash for the Series as
required to carry out the investment activities of the Series,
in relation to the matters contemplated by this Agreement; and
6. provide such financial support, administrative services and
other duties as the Adviser deems necessary and appropriate.
C. Duties of the Adviser
In the event the Adviser delegates certain responsibilities hereunder
to one or more Subadvisers, the Adviser shall, among other things:
1. monitor the investment program maintained by the Subadvisers
for the Series and the Subadvisers' compliance program to
ensure that the Series' assets are invested in compliance with
the Subadvisory Agreement and the Series' investment
objectives and policies as adopted by the Board and described
in the most current effective amendment of the registration
statement, as filed with the Commission under the 1933 Act and
the 1940 Act ("Registration Statement");
2. allocate series' assets among such Subadvisers;
3. review all data and financial reports prepared by the
Subadviser to assure that they are in compliance with
applicable requirements and meet the provisions of applicable
laws and regulations;
4. establish and maintain regular communications with the
Subadvisers to share information it obtains with the
Subadvisers concerning the effect of developments and data on
the investment program maintained by the Subadvisers; and
5. oversee all matters relating to the offer and sale of the
Series' shares, the Company's corporate governance, reports to
the Board, contracts with all third parties on behalf of the
Company for services to the Series, reports to regulatory
authorities and compliance with all applicable rules and
regulations affecting the Company's operations.
V. BROKER-DEALER RELATIONSHIPS
A. Portfolio Trades
The Adviser, at its own expense, shall place all orders for the
purchase and sale of portfolio securities with brokers or dealers
selected by the Adviser, which may include brokers or dealers
affiliated with the Adviser. The Adviser shall use its best efforts to
seek to execute portfolio transactions at prices that are advantageous
to the Series and at commission rates that are reasonable in relation
to the benefits received.
B. Selection of Broker-Dealers
In selecting broker-dealers qualified to execute a particular
transaction, brokers or dealers may be selected who also provide
brokerage or research services (as those terms are defined in Section
28(e) of the Securities Exchange Act of 1934) to the Adviser and/or the
other accounts over which the Adviser or its affiliates exercise
investment discretion. The Adviser may also select brokers or dealers
to effect transactions for the Series who provide payment for expenses
of the Series. The Adviser is authorized to pay a broker or dealer who
provides such brokerage and research services or expenses, and that
have provided assistance in the distribution of shares of the Series to
the extent permitted by law, a commission for executing a portfolio
transaction for the Series that is in excess of the amount of
commission another broker or dealer would have charged for effecting
that transaction if the Adviser determines in good faith that such
amount of commission is reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer and
is paid in compliance with Section 28(e) or other rules and regulations
of the Commission. This determination may be viewed in terms of either
that particular transaction or the overall responsibilities that the
Adviser and its affiliates have with respect to accounts over which
they exercise investment discretion. The Board shall periodically
review the commissions paid by the Series to determine if the
commissions paid over representative periods of time were reasonable in
relation to the benefits received.
Any delegation to a Subadviser (as authorized in Section IV above) of
the selection of broker-dealers to execute portfolio transactions will
include instructions consistent with the parameters outlined in this
Section.
VI. CONTROL BY THE BOARD
Any investment program undertaken by the Adviser pursuant to this Agreement, as
well as any other activities undertaken by the Adviser on behalf of the Series
pursuant thereto, shall at all times be subject to any directives of the Board.
VII. COMPLIANCE WITH APPLICABLE REQUIREMENTS
In carrying out its obligations under this Agreement, the Adviser shall at all
times conform to:
1. all applicable provisions of the 1940 Act;
2. the provisions of the current Registration Statement of the
Company;
3. the provisions of the Fund's Articles of Incorporation, as
amended;
4. the provisions of the Bylaws of the Fund, as amended; and
5. any other applicable provisions of state or federal law.
VIII. COMPENSATION
For the services to be rendered, the facilities furnished and the expenses
assumed by the Adviser, the Company, on behalf of the Series, shall pay to the
Adviser an annual fee, payable monthly, based upon the average daily net assets
of the Series as shown on the attached Schedule B.
Except as hereinafter set forth, compensation under this Agreement shall be
calculated and accrued daily at the rate of 1/365 of the annual advisory fee
applied to the daily net assets of the Series. If this Agreement becomes
effective subsequent to the first day of a month or terminates before the last
day of a month, compensation for that part of the month this Agreement is in
effect shall be prorated in a manner consistent with the calculation of the fees
set forth above. Subject to the provisions of Section IX hereof, payment of the
Adviser's compensation for the preceding month shall be made as promptly as
possible. For so long as a Subadvisory Agreement is in effect, the Company
acknowledges on behalf of the Series that the Adviser will pay to each
Subadviser, as compensation for acting as a Subadviser to the Series, the fees
specified in the particular Subadvisory Agreement.
IX. EXPENSES
The expenses in connection with the management of the Company shall be allocated
between the Series and the Adviser as follows:
A. Expenses of the Adviser
The Adviser shall pay:
1. the salaries, employment benefits and other related costs and
expenses of those of its personnel engaged in providing
investment advice to the Series, including without limitation,
office space, office equipment, telephone and postage costs;
and
2. all fees and expenses of all directors, officers and
employees, if any, of the Company who are employees of the
Adviser or an affiliated entity, including any salaries and
employment benefits payable to those persons.
B. Expenses of the Series
The Series shall pay:
1. investment advisory fees pursuant to this Agreement;
2. brokers' commissions, issue and transfer taxes or other
transaction fees payable in connection with any transactions
in the securities in the Series' investment portfolio or other
investment transactions incurred in managing the Series'
assets, including portions of commissions that may be paid to
reflect brokerage research services provided to the Adviser;
3. fees and expenses of the Company's independent accountants and
legal counsel and the independent Directors' legal counsel;
4. fees and expenses of any administrator, transfer agent,
custodian, dividend, accounting, pricing or disbursing agent
of the Series;
5. interest and taxes;
6. fees and expenses of any membership in the Investment Company
Institute or any similar organization in which the Board deems
it advisable for the Company to maintain membership;
7. insurance premiums on property or personnel (including
officers and directors) of the Company which benefit the
Series;
8. all fees and expenses of the Company's directors, who are not
"interested persons" (as defined in the 0000 Xxx) of the
Company or the Adviser;
9. expenses of preparing, printing and distributing proxies,
proxy statements, prospectuses and reports to shareholders of
the Series, except for those expenses paid by third parties in
connection with the distribution of Series shares and all
costs and expenses of shareholders' meetings;
10. all expenses incident to the payment of any dividend,
distribution, withdrawal or redemption, whether in shares of
the Series or in cash;
11. costs and expenses (other than those detailed in paragraph 9
above) of promoting the sale of shares issued by the Series,
provided that nothing in this Agreement shall prevent the
charging of such costs to third parties involved in the
distribution of shares issued by the Series;
12. fees payable by the Series to the Commission or to any state
securities regulator or other regulatory authority for the
registration of shares of the Series in any state or territory
of the United States or of the District of Columbia;
13. all costs attributable to investor services, administering
shareholder accounts and handling shareholder relations
(including, without limitation, telephone and personnel
expenses), which costs may also be charged to third parties by
the Adviser; and
14. any other ordinary, routine expenses incurred in the
management of the Series' assets, and any nonrecurring or
extraordinary expenses, including organizational expenses,
litigation affecting the Series and any indemnification by the
Company of its officers, directors or agents.
X. NONEXCLUSIVITY
The services of the Adviser to the Company are not to be deemed to be exclusive,
and the Adviser shall be free to render investment advisory or other services to
others (including other investment companies) and to engage in other activities,
so long as its services under this Agreement are not impaired thereby. It is
understood and agreed that officers and directors of the Adviser may serve as
officers or directors of the Company, and that officers or directors of the
Company may serve as officers or directors of the Adviser to the extent
permitted by law; and that the officers and directors of the Adviser are not
prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors
or trustees of any other firm or trust, including other investment companies.
XI. TERM
This Agreement shall become effective with respect to each Initial Series on the
date of its execution and with respect to any Additional Series, on the later of
the date Schedule A is amended to reflect such Additional Series or the date of
the commencement of operations of the Additional Series.
Unless terminated in accordance with Section XIII below, the Agreement shall
remain in full force and effect through November 30, 2003 with respect to each
Initial Series and, with respect to each Additional Series, for two years from
the date on which such Series becomes a Series hereunder.
XII. RENEWAL
Following the expiration of its initial term with respect to a Series, the
Agreement shall continue in full force and effect for periods of one year
thereafter provided that such continuance is specifically approved at least
annually:
1. a. by the Board, or
b. by the vote of a majority of the Series' outstanding
voting securities (as defined in Section 2(a)(42) of the
1940 Act), and
2. by the affirmative vote of a majority of the directors who are
not parties to this Agreement or interested persons of a party
to this Agreement (other than as a director of the Company),
by votes cast in person at a meeting specifically called for
such purpose.
XIII. TERMINATION
Notwithstanding the foregoing, this Agreement may be terminated with respect to
a Series at any time, without the payment of any penalty, by vote of the Board
or by vote of a majority of the Series' outstanding voting securities (as
defined in Section 2(a)(42) of the 1940 Act), or by the Adviser, on sixty (60)
days' written notice to the other party. The notice provided for herein may be
waived by the party required to be notified. This Agreement shall automatically
terminate in the event of its "assignment," as that term is defined in Section
2(a)(4) of the 1940 Act.
XIV. AMENDMENT OF AGREEMENT
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
material amendment of this Agreement shall be effective with respect to a Series
until approved by vote of the Board and by vote of a majority of the Independent
Directors cast in person at a meeting called for the purpose of such approval,
and if required under the 1940 Act, a majority of the outstanding voting
securities of that Series.
XV. APPROVAL, AMENDMENT OR TERMINATION
Any approval, amendment or termination of this Agreement with respect to a
Series will not require the approval of any other Series or the approval of a
majority of the outstanding voting securities of the Company, unless such
approval is required by applicable law.
XVI. LIABILITY
The Adviser shall be liable to the Company and shall indemnify the Company for
any losses incurred by the Company, whether in the purchase, holding or sale of
any security or otherwise, to the extent that such losses resulted from an act
or omission on the part of the Adviser or its officers, directors or employees,
that is found to involve willful misfeasance, bad faith or negligence, or
reckless disregard by the Adviser of its duties under this Agreement, in
connection with the services rendered by the Adviser hereunder.
XVII. NOTICES
Any notices under this Agreement shall be in writing, addressed and delivered,
mailed postage paid, or sent by other delivery service, or by facsimile
transmission to each party at such address as each party may designate for the
receipt of notice. Until further notice, such addresses shall be:
if to the Company, the Series or the Adviser:
Xxxxxx Xxxxxxxxxxx
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, Xxxxxxxxxxx 00000
XVIII. QUESTIONS OF INTERPRETATION
This Agreement shall be governed by the laws of the State of Connecticut. Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States Courts or, in the absence
of any controlling decision of any such court, by rules, releases or orders of
the Commission issued pursuant to the 1940 Act. In addition, where the effect of
a requirement of the 1940 Act reflected in the provisions of this Agreement is
revised by rule, release or order of the Commission, such provisions shall be
deemed to incorporate the effect of such rule, release or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their respective officers as of the date first written above.
ING Life Insurance and Annuity Company
By:
----------------------------
Attest: Name: Xxxxxx X. Xxxxxxxxxxx
------------------------ Title: Vice President
----------------------------
ING Partners, Inc. on behalf of each
of its series as listed on the
attached Schedule A
By:
----------------------------
Attest: Name: Xxxxxx X. Xxxxxxxxxxx
------------------------ ----------------------------
Xxxxx X. Xxxxxx Title: President
Secretary ----------------------------
Schedule A
Series of ING Partners, Inc.
Initial Series
o ING Xxxxx Growth Portfolio
o ING Xxxxx Aggressive Growth Portfolio
o ING American Century Small Cap Value Portfolio
o ING Baron Small Cap Growth Portfolio
o ING DSI Enhanced Index Portfolio
o ING Xxxxxxx Xxxxx Capital Growth Portfolio
o ING JPMorgan Xxxxxxx International Portfolio
o ING XX Xxxxxx Mid Cap Value Portfolio
o ING MFS Capital Opportunities Portfolio
o ING MFS Global Growth Portfolio
o ING MFS Research Equity Portfolio
o ING OpCap Balanced Value Portfolio
o ING PIMCO Total Return Portfolio
o ING Salomon Brothers
Aggressive Growth Portfolio
o ING Salomon Bros. Investors Value Portfolio
o ING Salomon Bros. Fundamental Value Portfolio
o ING X. Xxxx Price Growth Equity Portfolio
o ING UBS Tactical Asset Allocation Portfolio
o ING Xxx Xxxxxx Xxxxxxxx Portfolio
o
Additional Series
o [ING Xxxxx Capital Appreciation Portfolio]
o [ING Xxxxxxx Xxxxx(R)Core Equity Portfolio]
Dated:
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Schedule B
Advisory Fees
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Initial Series Fees
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o ING Xxxxx Growth Portfolio 0.80% of average daily net assets
------------------------------------------------------------------------------
o ING Xxxxx Aggressive Growth Portfolio 0.85% of average daily net assets
------------------------------------------------------------------------------
o ING American Century Small Cap Value 1.00% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING Baron Small Cap Growth Portfolio 0.85% of average daily net assets
------------------------------------------------------------------------------
o ING DSI Enhanced Index Portfolio 0.60% of average daily net assets
------------------------------------------------------------------------------
o ING Xxxxxxx Xxxxx Capital Growth 0.85% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING JPMorgan Xxxxxxx International 0.80% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING XX Xxxxxx Mid Cap Value Portfolio 0.75% of average daily net assets
------------------------------------------------------------------------------
o ING MFS Capital Opportunities 0.65% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING MFS Global Growth Portfolio 0.60% of average daily net assets
------------------------------------------------------------------------------
o ING MFS Research Equity Portfolio 0.70% on the first $500 million
of average daily net assets;
0.65% on assets over $500 million
------------------------------------------------------------------------------
o ING OpCap Balanced Value Portfolio 0.80% of average daily net assets
------------------------------------------------------------------------------
o ING PIMCO Total Return Portfolio 0.50% of average daily net assets
------------------------------------------------------------------------------
o ING Salomon Brothers Investors Value 0.80% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING Salomon Brothers Fundamental Value 0.90% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING Salomon Brothers Aggressive Growth 0.70% of the first $500 million
Portfolio pf average daily net assets;
0.65% on assets over $500 million
------------------------------------------------------------------------------
o ING X. Xxxx Price Growth Equity 0.60% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING UBS Tactical Asset Allocation 0.90% of average daily net assets
Portfolio
------------------------------------------------------------------------------
o ING Xxx Xxxxxx Xxxxxxxx Portfolio 0.60% of average daily net assets
------------------------------------------------------------------------------
Additional Series Fees
------------------------------------------------------------------------------
o [ING Xxxxx Capital Appreciation 0.70% of average daily net assets
Portfolio]
------------------------------------------------------------------------------
o [ING Xxxxxxx Xxxxx(R)Core Equity 0.70% of average daily net assets
Portfolio]
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Dated: May 1, 2003
