EXHIBIT d(3)
INTERIM SUB-ADVISORY AGREEMENT
ING SERIES FUND, INC.
THIS INTERIM SUB-ADVISORY AGREEMENT (this "Agreement") made this 1st
day of January 2004, between ING Investments, LLC, an Arizona limited liability
company (the "Manager"), and BlackRock Advisors, Inc., a Delaware corporation
(the "Sub-Adviser").
WHEREAS, ING Series Fund, Inc. (the "Fund") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
investment management company;
WHEREAS, the Fund is authorized to issue separate series, each series
having its own investment objective or objectives, policies, and limitations;
WHEREAS, the Fund may offer shares of additional series in the future;
WHEREAS, pursuant to an Investment Management Agreement, dated March 1,
2002, as amended (the "Management Agreement"), a copy of which has been provided
to the Sub-Adviser, the Fund has retained the Manager to render advisory and
management services with respect to certain of the Fund's series;
WHEREAS, pursuant to authority granted to the Manager in the Management
Agreement, the Manager wishes to retain the Sub-Adviser to furnish investment
advisory services to one or more of the series of the Fund and Sub-Adviser is
willing to furnish such services to the Fund and the Manager; and
WHEREAS, in order to provide continuous and uninterrupted investment
advisory services to the Fund, pursuant to Rule 15a-4 under the 1940 Act, the
Sub-Adviser and the Manager sought and approval was obtained from a majority of
the Board of Directors (the "Board") of the Fund who have no interest in this
Agreement and are not interested persons (as such term is defined in the ▇▇▇▇
▇▇▇) of any party to this Agreement to enter into this Interim Sub-Advisory
Agreement to be effective upon the date first written above.
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.
a. The Manager hereby appoints the Sub-Adviser to act as the
investment adviser and manager to the series of the Fund set forth on SCHEDULE A
hereto (the "Series") for the period 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.
b. Exclusivity. Upon the effective date and for the duration
of this Agreement (the "Non-Compete Period"), the Sub-Adviser will not act as an
investment adviser or investment sub-adviser to any "investment company," as
that term is currently defined in the
1940 Act, that is organized in any jurisdiction in the United States and is
registered with the SEC pursuant to Section 8 of the 1940 Act that has
investment objectives, investment policies and investment restrictions
substantially similar to those of the Series of the Fund to which this Agreement
relates as reflected in the Fund's effective Registration Statement. Exempted
from this restriction will be any non-mutual fund (including a closed-end
investment company), all current mutual funds (including any current proprietary
investment companies) managed by the Sub-Adviser, separate accounts, or another
investment company managed by the Manager. The parties agree that any change in
control of the Manager or any termination of this Agreement prior to the end of
the Non-Compete Period will terminate any prohibition on the Sub-Adviser's
ability to act as an investment adviser or manager as described above.
2. Sub-Adviser Duties. Subject to the supervision of the Fund's Board
and the Manager, the Sub-Adviser will provide a continuous investment program
for the Series' portfolio and determine in its discretion the composition of the
assets of the 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 the
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 the 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 the Series' investment objective or
objectives, policies, and restrictions as stated in the Fund's Registration
Statement filed with the Securities and Exchange Commission ("SEC"), as amended,
copies of which shall be sent to the Sub-Adviser by the Manager prior to the
commencement of this Agreement and promptly following any such amendment. The
Sub-Adviser further agrees as follows:
a. The Sub-Adviser will conform with the 1940 Act and all
rules and regulations thereunder, all other applicable federal and state laws
and regulations, with any applicable procedures adopted by the Fund's Board of
which the Sub-Adviser has been sent a copy, and the provisions of the
Registration Statement of the Fund filed under the Securities Act of 1933 (the
"1933 Act") and the 1940 Act, as supplemented or amended, of which the
Sub-Adviser has received a copy, and with the Manager's portfolio manager
operating policies and procedures as in effect on the date hereof, as such
policies and procedures may be revised or amended by the Manager. In carrying
out its duties under this Interim Sub-Advisory Agreement, the Sub-Adviser will
comply with the following policies and procedures:
i. The Sub-Adviser will manage the Series so that it
meets the income and asset diversification requirements of Section 851 of the
Internal Revenue Code.
ii. The Sub-Adviser will have no duty to vote any
proxy solicited by or with respect to the issuers of securities in which assets
of the Series are invested unless the Manager gives the Sub-Adviser written
instructions to the contrary. The Sub-Adviser will immediately forward any proxy
solicited by or with respect to the issuers of securities in which
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assets of the Series are invested to the Manager or to any agent of the Manager
designated by the Manager in writing.
iii. The Sub-Adviser will make appropriate personnel
available for consultation for the purpose of reviewing with representatives of
the Manager and/or the Board any proxy solicited by or with respect to the
issuers of securities in which assets of the Series are invested. Upon request,
the Sub-Adviser will submit a written voting recommendation to the Manager for
such proxies. In making such recommendations, the Sub-Adviser shall use its good
faith judgment to act in the best interests of the Series. The Sub-Adviser shall
disclose to the best of its knowledge any conflict of interest with the issuers
of securities that are the subject of such recommendation including whether such
issuers are clients or are being solicited as clients of the Sub-Adviser or of
its affiliates.
iv. In connection with the purchase and sale of
securities for the Series, the Sub-Adviser will arrange for the transmission to
the custodian and portfolio accounting agent for the Series on a daily basis,
such confirmation, trade tickets, and other documents and information,
including, but not limited to, Cusip, 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 Fund's transfer
agent, currently the Depository Trust Company, the Sub-Adviser will arrange for
the prompt transmission of the confirmation of such trades to the Fund's
custodian and portfolio accounting agent.
v. The Sub-Adviser will assist the custodian and
portfolio accounting agent for the Fund in determining or confirming, consistent
with the procedures and policies stated in the Registration Statement for the
Fund or adopted by the Board, the value of any portfolio securities or other
assets of the Series for which the custodian and portfolio accounting agent
seeks assistance from or identifies for review by the Sub-Adviser. The parties
acknowledge that the Sub-Adviser is not a custodian of the Series' assets and
will not take possession or custody of such assets.
vi. The Sub-Adviser will provide the Manager, no
later than the 10th business day following the end of the 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.
vii. 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 10th day of the following month.
viii. The Sub-Adviser will complete and deliver to
the Manager by the 10th business day of each month a written report on the
Series of the Fund that contains the following information as of the immediately
previous month's end:
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a. A performance comparison to the Series'
benchmark listed in the prospectus as well as a comparison to other mutual funds
as listed in the rankings prepared by Lipper Analytical Services, Inc.,
Morningstar, Inc., or similar independent services that monitor the performance
of mutual funds or with other appropriate indexes of investment securities;
b. Composition of the assets of the Series'
portfolio and the impact of key portfolio holdings and sector concentrations on
the Series; and
c. Confirmation of the Fund's current
investment objective and Sub-Adviser's projected plan to realize the Fund's
investment objectives.
ix. The Sub-Adviser will contact Morningstar to
clarify any style box conflicts with the Fund's style and the anticipated
timeframe in which Morningstar will remedy such conflicts, if any.
x. The parties agree that in the event that the
Manager or an affiliated person of the Manager sends sales literature or other
promotional material to the Sub-Adviser for its approval and the Sub-Adviser has
not commented within 5 business days, the Manager and its affiliated persons may
use and distribute such sales literature or other promotional material.
b. The Sub-Adviser will make available to the Fund and the
Manager, promptly upon request, any of the Series' investment records and
ledgers maintained by the Sub-Adviser (which shall not include the records and
ledgers maintained by the custodian or portfolio accounting agent for the Fund)
as are necessary to assist the Fund and the Manager to comply with requirements
of the 1940 Act and the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), as well as other applicable laws. The Sub-Adviser will furnish
to regulatory authorities having the requisite authority any information or
reports in connection with such services in respect to the Series which may be
requested in order to ascertain whether the operations of the Fund are being
conducted in a manner consistent with applicable laws and regulations.
c. The Sub-Adviser will provide reports to the Fund's Board
for consideration at meetings of the Board on the investment program for the
Series and the issuers and securities represented in the Series' portfolio, and
will furnish the Fund's Board with respect to the Series such periodic and
special reports as the Board 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 the Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
rates in effecting a security transaction. The Sub-Adviser's primary
consideration in effecting a security transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
prospectus and/or statement of additional information for the Fund, and
determined in consultation with the Manager, which include price (including the
applicable brokerage commission or dollar spread), the size of the order, the
nature of the market for the security, the timing of the transaction, the
reputation, 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
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involved, and the firm's risk in positioning a block of securities. Accordingly,
the price to the Series in any transaction may be less favorable than that
available from another broker-dealer if the difference is reasonably justified,
in the judgment of the Sub-Adviser in the exercise of its fiduciary obligations
to the Fund, by other aspects of the portfolio execution services offered.
Subject to such policies as the Fund's Board 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. The
Sub-Adviser will consult with the Manager to ensure that portfolio transactions
on behalf of the Series are directed to broker-dealers on the basis of criteria
reasonably considered appropriate by the Manager. To the extent consistent with
these standards, the Sub-Adviser is further authorized to allocate the orders
placed by it on behalf of the Series to the Sub-Adviser if it is registered as a
broker-dealer with the SEC, to an affiliated broker-dealer, or to such brokers
and dealers who also provide research or statistical material, or other services
to the Series, the Sub-Adviser, or an affiliate of the Sub-Adviser. Such
allocation shall be in such amounts and proportions as the Sub-Adviser shall
determine consistent with the above standards, and the Sub-Adviser will report
on said allocation regularly to the Fund's Board indicating the broker-dealers
to which such allocations have been made and the basis therefor.
4. Disclosure about Sub-Adviser. The Sub-Adviser has reviewed the most
recent Post-Effective Amendment to the Registration Statement for the Fund
filed with the SEC that contains disclosure about the Sub-Adviser and represents
and warrants that, with respect to the disclosure about the Sub-Adviser or
information relating directly or indirectly to the Sub-Adviser, such
Registration Statement contains, as of the date hereof, no untrue statement of
any material fact and does not omit any statement of a material fact which was
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will maintain such
registration so long as this Agreement remains in effect. The Manager hereby
acknowledges that it has received a copy of the Sub-Adviser's Form ADV, Part II,
at least forty-eight (48) hours prior to entering into this Agreement.
5. Expenses. During the term of this Agreement, the Sub-Adviser will
pay all expenses incurred by it and its staff and for their activities in
connection with its portfolio management duties under this Agreement. The
Manager or the Fund shall be responsible for all the expenses of the Fund's
operations.
6. Compensation. For the services provided to the Series, the Manager
will pay the Sub-Adviser an interim sub-advisory fee equal to the amount
specified for such Series in SCHEDULE A hereto, payable monthly in arrears. The
fee will be appropriately prorated to reflect any portion of a calendar month
that this Agreement is not in effect among the parties. In accordance with
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the provisions of the Management Agreement, the Manager is solely responsible
for the payment of fees to the Sub-Adviser, and the Sub-Adviser agrees to seek
payment of its fees solely from the Manager; provided, however, that if the Fund
fails to pay the Manager all or a portion of the management fee under said
Management Agreement when due, and the amount that was paid is insufficient to
cover the Sub-Adviser's fee under this Agreement for the period in question,
then the Sub-Adviser may enforce against the Fund any rights it may have as a
third-party beneficiary under the Management Agreement and the Manager will take
all steps appropriate under the circumstances to collect the amount due from the
Fund.
7. Compliance.
a. The Sub-Adviser agrees to use reasonable compliance
techniques as the Manager or the Board may adopt, including any written
compliance procedures.
b. The Sub-Adviser agrees that it shall promptly notify, if
legally permitted, the Manager and the Fund (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 Fund promptly of any material fact known to the
Sub-Adviser respecting or relating to the Sub-Adviser that is not contained in
the Registration Statement or prospectus for the Fund (which describes the
Series), or any amendment or supplement thereto, or if any statement contained
therein that becomes untrue in any material respect.
c. The Manager agrees that it shall promptly notify, if
legally permitted, the Sub-Adviser (1) in the event that the SEC has censured
the Manager or the Fund; placed limitations upon either of their activities,
functions, or operations; suspended or revoked the Manager's registration as an
investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions, or (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.
8. Books and Records. The Sub-Adviser hereby agrees that all records
which it maintains for the Series are the property of the Fund and further
agrees to surrender promptly to the Fund any of such records upon the Fund's or
the Manager's request in compliance with the requirements of Rule 31a-3 under
the 1940 Act, although the Sub-Adviser may, at its own expense, make and retain
a copy of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
9. Cooperation: Confidentiality. Each party to this Agreement agrees to
cooperate with the other party and with all appropriate governmental authorities
having the requisite jurisdiction (including, but not limited to, the SEC) in
connection with any investigation or inquiry relating to this Agreement or the
Fund. Subject to the foregoing, the Sub-Adviser shall treat as confidential all
information pertaining to the Fund and actions of the Fund, the Manager and the
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Sub-Adviser, and the Manager shall treat as confidential and use only in
connection with the Series all information furnished to the Fund or the Manager
by the Sub-Adviser, in connection with its duties under this Agreement except
that the aforesaid information need not be treated as confidential if required
to be disclosed under applicable law, if generally available to the public
through means other than by disclosure by the Sub-Adviser or the Manager, or if
available from a source other than the Manager, Sub-Adviser or the Fund.
10. 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 the Fund's shares, as
they may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
11. Control. Notwithstanding any other provision of the Agreement, it
is understood and agreed that the Fund shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement and has reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
12. 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 the Fund 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 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.
13. Indemnification.
a. The Manager agrees to indemnify and hold harmless the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls ("controlling
person") the Sub-Adviser (all of such persons being referred to as "Sub-Adviser
Indemnified Persons") against any and all losses, claims, damages, liabilities,
or litigation (including legal and other expenses) to which a Sub-Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of the Manager's responsibilities to the Fund which (1) may be based upon the
Manager's negligence, willful misfeasance, or bad faith in the performance of
its duties (which could include a negligent action or a negligent omission to
act), or by reason of the Manager's reckless disregard of its obligations and
duties under this Agreement, or (2) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or prospectus covering shares of the Fund or the Series, or any
amendment thereof or any supplement thereto, or the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to the Manager or
the Fund or to any affiliated person of the Manager by a Sub-Adviser Indemnified
Person; provided however, that in no case shall the indemnity in favor of the
Sub-Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or negligence in the performance of its duties,
or by reason of its reckless disregard of obligations and duties under this
Agreement.
b. Notwithstanding Section 12 of this Agreement, the
Sub-Adviser agrees to indemnify and hold harmless the Manager, any affiliated
person of the Manager, and any controlling person of the Manager (all of such
persons being referred to as "Manager Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal and other
expenses) to which a Manager Indemnified Person may become subject under the
1933 Act, 1940 Act, the Advisers Act, under any other statute, at common law or
otherwise, arising out of the Sub-Adviser's responsibilities as Sub-Adviser of
the Series which (1) may be based upon the Sub-Adviser's negligence, willful
misfeasance, or bad faith in the performance of its duties (which could include
a negligent action or a negligent omission to act), or by reason of the
Sub-Adviser's reckless disregard of its obligations and duties under this
Agreement, or (2) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
prospectus covering the shares of the Fund or the Series, or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact known or which should have been known to the Sub-Adviser and was
required to be stated therein or necessary to make the statements therein not
misleading, if such a statement or omission was made in reliance upon
information furnished to the Manager, the Fund, or any affiliated person of the
Manager or Fund by the Sub-Adviser or any affiliated person of the Sub-Adviser;
provided, however, that in no case shall the indemnity in favor of a Manager
Indemnified Person be deemed to protect such person against any liability to
which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties under this
Agreement.
c. The Manager shall not be liable under Paragraph (a) of this
Section 13 with respect to any claim made against a Sub-Adviser Indemnified
Person unless such Sub-Adviser Indemnified Person shall have notified the
Manager in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon such Sub-Adviser Indemnified Person (or after such Sub-Adviser
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the Manager of any such claim shall not relieve
the Manager from any liability which it may have to the Sub-Adviser Indemnified
Person against whom such action is brought except to the extent the Manager is
prejudiced by the failure or delay in giving such notice. In case any such
action is brought against the Sub-Adviser Indemnified Person, the Manager will
be entitled to participate, at its own expense, in the defense thereof or, after
notice to the Sub-Adviser Indemnified Person, to assume the defense thereof,
with counsel satisfactory to the Sub-Adviser Indemnified Person. If the Manager
assumes the defense of any such action and the selection of counsel by the
Manager to represent the Manager and the Sub-Adviser Indemnified Person would
result in a conflict of interests and therefore, would not, in the reasonable
judgment of the
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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 13 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.
14. Duration and Termination.
a. This Agreement shall become effective on the date first
indicated above, subject to the condition that the Fund's Board, including a
majority of those Directors who are not interested persons (as such term is
defined in the ▇▇▇▇ ▇▇▇) of the Manager or the Sub-Adviser shall have approved
this Agreement. Unless terminated as provided herein, this
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Agreement shall remain in full force and effect through MAY 29, 2004, 150 days
from its effective date (the "Termination Date"). Notwithstanding the foregoing,
this Agreement may be terminated with respect to the Series covered by this
Agreement: (a) by the parties' entry into a new Sub-Advisory Agreement that
replaces this Agreement, following approval of the shareholders of the Series
covered by this Agreement, (b) by the Manager at any time, upon 10 days' written
notice to the Sub-Adviser and the Fund, (c) at any time without payment of any
penalty by the Fund, by the Fund's Board or a majority of the outstanding voting
securities of the Series, upon 10 days' written notice to the Manager and the
Sub-Adviser, or (d) by the Sub-Adviser upon 3 months' written notice unless the
Fund or the Manager requests additional time to find a replacement for the
Sub-Adviser, in which case the Sub-Adviser shall allow the additional time
requested by the Fund or Manager; provided, however, in no event shall the
effective date of the termination of this Agreement exceed the Termination Date;
provided, further, that the Sub-Adviser may terminate this Agreement at any time
without penalty, effective upon written notice to the Manager and the Fund, in
the event either the Sub-Adviser (acting in good faith) or the Manager ceases to
be registered as an investment adviser under the Advisers Act or otherwise
becomes legally incapable of providing investment management services pursuant
to its respective contract with the Fund or with respect to the Series, or in
the event the Manager becomes bankrupt or otherwise incapable of carrying out
its obligations under this Agreement, or in the event that the Sub-Adviser does
not receive compensation for its services from the Manager or the Fund as
required by the terms of this Agreement.
b. In the event of termination for any reason, all records of
the Series for which the Agreement is terminated shall promptly be returned to
the Manager or the Fund, free from any claim or retention of rights in such
record by the Sub-Adviser, although the Sub-Adviser may, at its own expense,
make and retain a copy of such records. This Agreement shall automatically
terminate in the event of its assignment (as such term is described in the 1940
Act). In the event this Agreement is terminated or is not approved in the manner
described above, the Sections or Paragraphs numbered 8, 9, 10, 11, 12 and 13 of
this Agreement shall remain in effect, as well as any applicable provision of
this Section 14 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.
c. Notices. Any notice must be in writing and shall be
sufficiently given (1) when delivered in person, (2) when dispatched by telegram
or electronic facsimile transfer (confirmed in writing by postage prepaid first
class air mail simultaneously dispatched), (3) when sent by internationally
recognized overnight courier service (with receipt confirmed by such overnight
courier service), or (4) when sent by registered or certified mail, to the other
party at the address of such party set forth below or at such other address as
such party may from time to time specify in writing to the other party.
If to the Fund:
ING Series Fund, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
10
If to the Adviser:
ING Investments, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Sub-Adviser:
BlackRock Advisors, Inc.
c/o BlackRock, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director and General Counsel
15. 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. If shareholder approval of an amendment is required under
the 1940 Act, no such amendment shall become effective until approved by a vote
of the majority of the outstanding shares of the Series. Otherwise, a written
amendment of this Agreement is effective upon the approval of the Board and the
Sub-Adviser.
16. Miscellaneous.
a. This Agreement shall be governed by the laws of the State
of Arizona, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the SEC
thereunder, and without regard for the conflicts of laws principle thereof. The
term "affiliate" or "affiliated person" as used in this Agreement shall mean
"affiliated person" as defined in Section 2(a)(3) of the ▇▇▇▇ ▇▇▇.
b. The Manager and the Sub-Adviser acknowledge that the Fund
enjoys the rights of a third-party beneficiary under this Agreement, and the
Manager acknowledges that the Sub-Adviser enjoys the rights of a third party
beneficiary under the Management Agreement.
c. The captions of this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
d. To the extent permitted under Section 14 of this Agreement,
this Agreement may only be assigned by any party with the prior written consent
of the other party.
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.
11
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.
This Agreement may be executed in counterparts.
[Remainder of Page Intentionally Left Blank]
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
BLACKROCK ADVISORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
13
SCHEDULE A
SERIES INTERIM SUB-ADVISORY FEE
------ ------------------------
ING Technology Fund 0.35%
14
