Exhibit (d)(4)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 23rd day of September 2002, between ING Equity
Trust, a Massachusetts business trust (the "Trust"), and ING Investments, LLC,
an Arizona limited liability company (the "Manager").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial
interest in separate series with each such series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Trust may offer shares of additional series in the
future, and currently intends to offer shares of additional series in the
future; and
WHEREAS, the Trust desires to avail itself of the services of the
Manager for the provision of advisory and management services for the Trust; and
WHEREAS, the Manager is willing to render such services to the
Trust.
NOW, THEREFORE, in consideration of the premises, the promises and
mutual covenants herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Manager, subject to
the direction of the Board of Trustees, for the period and on the terms set
forth in this Agreement, to provide advisory, management, and other services, as
described herein, with respect to each series of the Trust set forth in Schedule
A hereto (individually and collectively referred to herein as "Series"), as such
schedule may be amended from time to time. The Manager accepts such appointment
and agrees to render the services herein set forth for the compensation herein
provided.
In the event the Trust establishes and designates additional series
with respect to which it desires to retain the Manager to render advisory
services hereunder, it shall notify the Manager in writing. If the Manager is
willing to render such services, it shall notify the Trust in writing, whereupon
such additional series shall become a Series hereunder.
2. Services of the Manager. The Manager represents and warrants that
it is registered as an investment adviser under the Investment Advisers Act of
1940 and will maintain such registration for so long as required by applicable
law. Subject to the general supervision of the Board of Trustees of the Trust,
the Manager shall provide the following advisory, management, and other services
with respect to the Series:
(a) Provide general, overall advice and guidance with respect to
each Series and provide advice and guidance to the Trust's Trustees, and oversee
the management of the investments of the Series and the composition of each
Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance
with each Series' investment objective or objectives and policies as stated in
the Trust's current registration statement, which management may be provided by
others selected by the Manager and approved by the Board of Trustees as provided
below or directly by the Manager as provided in Section 3 of this Agreement;
(b) In the event that the Manager wishes to select others to render
investment management services, the Manager shall analyze, select and recommend
for consideration and approval by the Trust's Board of Trustees investment
advisory firms (however organized) to provide investment advice to one or more
of the Series, and, at the expense of the Manager, engage (which engagement may
also be by the Trust) such investment advisory firms to render investment advice
and manage the investments of such Series and the composition of each such
Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with the Series'
investment objective or objectives and policies as stated in the Trust's current
registration statement (any such firms approved by the Board of Trustees and
engaged by the Trust or the Manager are referred to herein as "Sub-Advisers");
(c) Periodically monitor and evaluate the performance of the
Sub-Advisers with respect to the investment objectives and policies of the
Series;
(d) Monitor the Sub-Advisers for compliance with the investment
objective or objectives, policies and restrictions of each Series, the 1940 Act,
Subchapter M of the Internal Revenue Code, and if applicable, regulations under
such provisions, and other applicable law;
(e) If appropriate, analyze and recommend for consideration by the
Trust's Board of Trustees termination of a contract with a Sub-Adviser under
which the Sub-Adviser provides investment advisory services to one or more of
the Series;
(f) Supervise Sub-Advisers with respect to the services that such
Sub-Advisers provide under respective sub-advisory agreements ("Sub-Advisory
Agreements");
(g) Render to the Board of Trustees of the Trust such periodic and
special reports as the Board may reasonably request; and
(h) Make available its officers and employees to the Board of
Trustees and officers of the Trust for consultation and discussions regarding
the administration and management of the Series and services provided to the
Trust under this Agreement.
3. Investment Management Authority. In the event the Manager wishes
to render investment management services directly to a Series, then with respect
to any such Series, the Manager, subject to the supervision of the Trust's Board
of Trustees, will provide a continuous investment program for such Series'
portfolio and determine the composition of the assets of such Series' portfolio,
including determination of the purchase, retention, or sale of the securities,
cash, and other investments contained in the portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of a Series' assets by determining the securities and
other investments that shall be purchased, entered into, sold, closed, or
exchanged for a Series, when these transactions should be executed, and what
portion of the assets of a Series should be held in the various securities
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and other investments in which it may invest, and the Manager is hereby
authorized to execute and perform such services on behalf of a Series. To the
extent permitted by the investment policies of a Series, the Manager 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 Manager will provide the services under this Agreement in
accordance with a Series' investment objective or objectives, policies, and
restrictions as stated in the Trust's Registration Statement filed with the
Securities and Exchange Commission (the "SEC"), as amended. Furthermore:
(a) The Manager will manage the Series so that each will qualify as
a regulated investment company under Subchapter M of the Internal Revenue Code.
In managing the Series in accordance with these requirements, the Manager shall
be entitled to receive and act upon advice of counsel to the Trust or counsel to
the Manager.
(b) The Manager 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 Trust's Board of
Trustees, and the provisions of the Registration Statement of the Trust under
the Securities Act of 1933 and the 1940 Act, as supplemented or amended.
(c) On occasions when the Manager deems the purchase or sale of a
security to be in the best interest of the Series as well as any other
investment advisory clients, the Manager may, to the extent permitted by
applicable laws and regulations, but shall not be obligated to, aggregate the
securities to be so sold or purchased with those of its other clients where such
aggregation is not inconsistent with the policies set forth in the Registration
Statement. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the Manager in
a manner that is fair and equitable in the judgment of the Manager in the
exercise of its fiduciary obligations to the Trust and to such other clients.
(d) In connection with the purchase and sale of securities of a
Series, the Manager will arrange for the transmission to the custodian for the
Series on a daily basis, of such confirmation, trade tickets, and 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 a Series,
as may be reasonably necessary to enable the custodian to perform its
administrative and recordkeeping responsibilities with respect to a Series. With
respect to portfolio securities to be purchased or sold through the Depository
Trust Company, the Manager will arrange for the prompt transmission of the
confirmation of such trades to the Trust's custodian.
(e) The Manager will assist the custodian or portfolio accounting
agent for the Series in determining, consistent with the procedures and policies
stated in the Registration Statement for the Trust, the value of any portfolio
securities or other assets of a Series for which the custodian or portfolio
accounting agent seeks assistance or review from the Manager.
(f) The Manager will make available to the Trust, promptly upon
request, any of a Series' investment records and ledgers as are necessary to
assist the Trust to comply with requirements of the 1940 Act, as well as other
applicable laws. The Manager will furnish to
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regulatory authorities having the requisite authority any information or reports
in connection with its services which may be requested in order to ascertain
whether the operations of the Trust are being conducted in a manner consistent
with applicable laws and regulations.
(g) The Manager will regularly report to the Trust's Board of
Trustees on the investment program for each Series and the issuers and
securities represented in each Series' portfolio, and will furnish the Trust's
Board of Trustees with respect to each Series such periodic and special reports
as the Trustees may reasonably request.
(h) In connection with its responsibilities under this Section 3,
the Manager is responsible for decisions to buy and sell securities and other
investments for the Series' portfolio, broker-dealer selection, and negotiation
of brokerage commission rates. The Manager's primary consideration in effecting
a security transaction will be to obtain the best execution for a Series, taking
into account the factors specified in the Prospectus or Statement of Additional
Information for the Trust, 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,
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, execution capabilities and operational
facilities of the firms 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 Manager in the exercise of its
fiduciary obligations to the Trust, by other aspects of the portfolio execution
services offered. Subject to such policies as the Board of Trustees may
determine and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended, the Manager 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 Manager
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
Manager's overall responsibilities with respect to a Series and to its other
clients as to which it exercises investment discretion. To the extent consistent
with these standards and in accordance with Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder, the Manager is further
authorized to allocate the orders placed by it on behalf of a Series to the
Manager 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 a Series, the Manager or an affiliate
of the Manager. Such allocation shall be in such amounts and proportions as the
Manager shall determine consistent with the above standards, and the Manager
will report on said allocation regularly to the Board of Trustees of the Trust
indicating the broker-dealers to which such allocations have been made and the
basis therefor.
4. Conformity with Applicable Law. The Manager, in the performance
of its duties and obligations under this Agreement, shall act in conformity with
the Registration Statement of the Trust and with the instructions and directions
of the Board of Trustees of the Trust and will conform to, and comply with, the
requirements of the 1940 Act and all other applicable federal and state laws and
regulations.
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5. Exclusivity. The services of the Manager to the Trust under this
Agreement are not to be deemed exclusive, and the Manager, or any affiliate
thereof, shall be free to render similar services to other investment companies
and other clients (whether or not their investment objectives and policies are
similar to those of any of the Series) and to engage in other activities, so
long as its services hereunder are not impaired thereby.
6. Documents. The Trust has delivered properly certified or
authenticated copies of each of the following documents to the Manager and will
deliver to it all future amendments and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust
authorizing the appointment of the Manager and approving the form of this
Agreement;
(b) the Registration Statement as filed with the SEC and any
amendments thereto; and
(c) exhibits, powers of attorney, certificates and any and all other
documents relating to or filed in connection with the Registration Statement
described above.
7. Records. The Manager agrees to maintain and to preserve for the
periods prescribed under the 1940 Act any such records as are required to be
maintained by the Manager with respect to a Series by the 1940 Act. The Manager
further agrees that all records which it maintains for each Series are the
property of the Trust and it will promptly surrender any of such records upon
request.
8. Expenses. During the term of this Agreement, the Manager will pay
all expenses incurred by it in connection with its activities under this
Agreement, except such expenses as are assumed by the Trust under this Agreement
and such expenses as are assumed by a Sub-Adviser under its Sub-Advisory
Agreement. The Manager further agrees to pay all fees payable to the
Sub-Advisers, executive salaries and expenses of the Trustees of the Trust who
are employees of the Manager or its affiliates, and office rent of the Trust.
The Trust shall be responsible for all of the other expenses of its operations,
including, without limitation, the management fee payable hereunder; brokerage
commissions; interest; legal fees and expenses of attorneys; fees of auditors,
transfer agents and dividend disbursing agents, custodians and shareholder
servicing agents; the expense of obtaining quotations for calculating each
Series' net asset value; taxes, if any, and the preparation of the Series' tax
returns; cost of stock certificates and any other expenses (including clerical
expenses) of issue, sale, repurchase or redemption of shares; expenses of
registering and qualifying shares of the Series under federal and state laws and
regulations (including the salary of employees of the Manager engaged in the
registering and qualifying of shares of the Series under federal and state laws
and regulations or a pro-rata portion of the salary of employees to the extent
so engaged); salaries of personnel involved in placing orders for the execution
of the Series' portfolio transactions; expenses of printing and distributing
reports, notices and proxy materials to existing shareholders; expenses of
printing and filing reports and other documents filed with governmental
agencies; expenses in connection with shareholder and trustee meetings; expenses
of printing and distributing prospectuses and statements of additional
information to existing shareholders; fees and expenses of Trustees of the Trust
who are not employees of the Manager or any Sub-Adviser, or their affiliates;
trade
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association dues; insurance premiums; extraordinary expenses such as litigation
expenses. To the extent the Manager incurs any costs or performs any services
which are an obligation of the Trust, as set forth herein, the Trust shall
promptly reimburse the Manager for such costs and expenses. To the extent the
services for which the Trust is obligated to pay are performed by the Manager,
the Manager shall be entitled to recover from the Trust only to the extent of
its costs for such services.
9. Compensation. For the services provided by the Manager to each
Series pursuant to this Agreement, the Trust will pay to the Manager an annual
fee equal to the amount specified for such Series in Schedule A hereto, payable
monthly in arrears. Payment of the above fees shall be in addition to any amount
paid to the Manager for the salary of its employees for performing services
which are an obligation of a Fund as provided in Section 8. The fee will be
appropriately pro-rated to reflect any portion of a calendar month that this
Agreement is not in effect between us.
10. Liability of the Manager. The Manager may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
stockholders, officers, trustees, employees, or agents shall be subject to, and
the Trust will indemnify such persons from and against, any liability for, or
any damages, expenses, or losses incurred 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 Manager's duties, or by reason of reckless
disregard of the Manager's obligations and duties under this Agreement. Except
as may otherwise be required by the 1940 Act or the rules thereunder, neither
the Manager nor its stockholders, officers, trustees, employees, or agents shall
be subject to, and each of the Funds will indemnify such persons from and
against, any liability for, or any damages, expenses, or losses incurred in
connection with, any act or omission by a Sub-Adviser or any of the
Sub-Adviser's stockholders or partners, officers, trustees, employees, or agents
connected with or arising out of any services rendered under a Sub-Advisory
Agreement, except by reason of willful misfeasance, bad faith, or gross
negligence in the performance of the Manager's duties under this Agreement, or
by reason of reckless disregard of the Manager's obligations and duties under
this Agreement. No trustee, officer, employee or agent of the Trust shall be
subject to any personal liability whatsoever, in his or her official capacity,
to any person, including the Sub-Adviser, other than to the Trust or its
shareholders, in connection with Trust property or the affairs of the Trust,
save only that arising from his or her bad faith, willful misfeasance, gross
negligence or reckless disregard of his or her duty to such person; and all such
persons shall look solely to the Trust property for satisfaction of claims of
any nature against a trustee, officer, employee or agent of the Trust arising in
connection with the affairs of the Trust. Moreover, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a Series shall be enforceable against the assets and property of that
Series only, and not against the assets or property of any other series of the
Trust.
11. Continuation and Termination. This Agreement shall become
effective on the date first written above, subject to the condition that the
Trust's Board of Trustees, including a majority of those Trustees who are not
interested persons (as such term is defined in the 1940
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Act) of the Manager, and the shareholders of each Series, shall have approved
this Agreement. Unless terminated as provided herein, the Agreement shall
continue in full force and effect with respect to each Series until the
Reapproval Date set forth for such Series on Schedule A to this Agreement, and
shall continue from year to year thereafter with respect to each Series so long
as such continuance is specifically approved at least annually (i) by the vote
of a majority of the Board of Trustees of the Trust, or (ii) by vote of a
majority of the outstanding voting shares of such Series (as defined in the 1940
Act), and provided continuance is also approved by the vote of a majority of the
Board of Trustees of the Trust who are not parties to this Agreement or
"interested persons" (as defined in the 0000 Xxx) of the Trust or the Manager,
cast in person at a meeting called for the purpose of voting on such approval.
This Agreement may not be amended in any material respect without a majority
vote of the outstanding voting shares (as defined in the 1940 Act).
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 Trust,
unless such approval shall be required by any other applicable law or otherwise.
This Agreement may be terminated by the Trust at any time, without the payment
of any penalty, by vote of a majority of the Board of Trustees of the Trust or
by a vote of a majority of the outstanding voting shares of the Trust, or with
respect to a Series, by vote of a majority of the outstanding voting shares of
such Series, on sixty (60) days' written notice to the Manager, or by the
Manager at any time, without the payment of any penalty, on sixty (60) days'
written notice to the Trust. This Agreement will automatically and immediately
terminate in the event of its "assignment" (as described in the 1940 Act).
12. Use of Name. It is understood that the name "ING Investments,
LLC" or any derivative thereof (including the name "ING") or logo associated
with that name is the valuable property of the Manager and its affiliates, and
that the Trust or each of the Series have the right to use such name (or
derivative or logo) only so long as this Agreement shall continue with respect
to such Trust or Series. Upon termination of this Agreement, the Trust (or
Series) shall forthwith cease to use such name (or derivative or logo) and, in
the case of the Trust, shall promptly amend its Declaration of Trust to change
its name (if such name is included therein).
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
14. Applicable Law.
(a) This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
(b) 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.
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(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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their officers designated below as of the day and year first
above written.
ING EQUITY TRUST
By: __________________________________
Xxxxxx X. Naka
Senior Vice President
ING INVESTMENTS, LLC
By: __________________________________
Xxxxxxx X. Xxxxxx
Executive Vice President
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SCHEDULE A
WITH RESPECT TO THE
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING EQUITY TRUST
AND
ING INVESTMENTS, LLC
EFFECTIVE SEPTEMBER 23, 2002
ANNUAL INVESTMENT
MANAGEMENT FEE LAST CONTINUED/
SERIES (as a percentage of average daily net assets) APPROVED BY BOARD REAPPROVAL DATE
------ --------------------------------------------- ----------------- ---------------
ING LargeCap Growth 0.75% of the first $500 million of assets August 20, 2002 September 1, 2003
Fund
0.675% of the next $500 million of assets
0.65% of the assets in excess of $1 billion
ING Convertible Fund 0.75% of the first $500 million of assets August 20, 2002 September 1, 2003
0.675% of the next $500 million of assets
0.65% of the assets in excess of $1 billion
ING Equity and Bond 0.75% of the first $500 million of assets August 20, 2002 September 1, 2003
Fund
0.675% of the next $500 million of assets
0.65% of the assets in excess of $1 billion
ING Large Company 0.75% of the first $100 million of assets August 20, 2002 September 1, 2003
Value Fund
0.60% of assets in excess of $100 million
0.50% of assets in excess of $150 million up to $250 million
0.40% of assets in excess of $250 million
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