EXHIBIT (d)(5)
INTERIM SUB-ADVISORY AGREEMENT
INTERIM AGREEMENT made this 14th day of August, 2006 (the "Agreement")
between ING Investments, LLC, an Arizona limited liability company (the
"Manager"), and ING Investment Management Co., a Connecticut 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; and
WHEREAS, the Fund is authorized to issue separate series, each series
having its own investment objective or objectives, policies, and limitations;
and
WHEREAS, the Fund may offer shares of additional series in the future;
and
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;
and
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 the
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 Trust, 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 0000
Xxx) of any party to this Agreement, to enter into this 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. The Manager hereby appoints the Sub-Adviser to act as
the investment sub-adviser and manager to the series of the Fund (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 the Fund 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 Fund's Board
and the Manager, the Sub-Adviser will provide a continuous investment program
for each Series' 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 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 and agreed to by the Sub-Adviser. In
carrying out its duties under the Sub-Advisory 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) 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 assets of the Series are
invested to the Manager or to any agent of the Manager designated by the Manager
in writing.
The Sub-Adviser will make appropriate personnel available to consult
with, upon reasonable request, 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. In making any 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 material conflict of interest with the
2
issuers of securities that are the subject of such recommendation.
(iii) 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, Sedol, 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.
(iv) 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 Statement for the Fund or
adopted by the Fund's 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.
(v) The Sub-Adviser will provide the Manager, no later than the 10th
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-1A in respect of both the prior quarter and the fiscal year to
date.
(vi) 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 business day of the following month.
(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 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 Fund's Board for
consideration at meetings of the Board on the investment program for each Series
and the issuers and securities represented in each Series' portfolio, and will
furnish the Fund's Board with respect to each Series such periodic and special
reports as the Directors and the Manager may reasonably request.
3
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 the Fund, 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-Adviser in the exercise of its fiduciary obligations to the Fund, on behalf
of a Series, 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. 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 Fund's Board
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 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
4
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 Fund shall be responsible for all the expenses of the Series'
operations.
6. COMPENSATION. For the services provided, the Manager will pay the
Sub-Adviser a fee, payable as described in SCHEDULE A.
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 5 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 5 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.
8. COMPLIANCE.
(a) The Sub-Adviser agrees to use reasonable compliance techniques,
including any written compliance procedures.
5
(b) The Sub-Adviser agrees that it shall promptly notify 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 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 the Fund; 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.
9. BOOKS AND RECORDS. The Sub-Adviser hereby agrees that all records
which it maintains for a 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 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 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 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 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 Fund.
11. NON-EXCLUSIVITY. The services of the Sub-Adviser to the Series and
the Fund are not to be deemed to be exclusive, and the Sub-Adviser shall be free
to render investment advisory or other services to others (including other
investment companies) and to engage in other activities, provided, however, that
the Sub-Adviser may not consult with any other sub-adviser of the Fund
concerning transactions in securities or other assets for any investment
portfolio of the Fund, including the Series, except that such consultations are
permitted between
6
the current and successor sub-advisers of the Series in order to effect an
orderly transition of sub-advisory duties so long as such consultations are not
concerning transactions prohibited by Section 17(a) of the 1940 Act.
12. 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.
13. 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 have reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
14. 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.
15. 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 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 the Fund or to
any affiliated person of the Manager by a
7
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 14 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 the Fund 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, 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, or 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 15 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 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
8
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 15 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.
16. 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
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 through January 11, 2007, 150 days from its effective date (the
"Termination Date").
9
Notwithstanding the foregoing, this Agreement may be terminated with respect to
any 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 each of the Series covered by this Agreement, (b) by the Manager
at any time, upon ten (10) calendar 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 a Series,
upon ten (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 not to exceed 3 additional months beyond the initial 3-month notice
period, provided however, in no event shall the effective date of the
termination of this Agreement exceed the Termination Date; also provided, 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 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.
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 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 9, 10, 12, 13, 14 and 15 of this Agreement shall
remain in effect, as well as any applicable provision of this Section numbered
16 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 the Fund:
ING Series Fund, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Counsel
10
If to the Manager:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to the Sub-Adviser:
ING Investment Management Co.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
17. 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 Directors of the Fund, including a majority of the Directors of the
Fund 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.
18. 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 0000 Xxx.
(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 16 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.
11
(g) This Agreement may be executed in counterparts.
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/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Senior Vice President
ING INVESTMENT MANAGEMENT CO.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------
Title: SVP and CFO
-------------------------
12
SCHEDULE A
WITH RESPECT TO THE
INTERIM SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT CO.
ANNUAL SUB-ADVISER FEE
SERIES (AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
------ ---------------------------------------------
0.3150% on first $250 million
0.2925% on next $250 million
ING Growth and Income Fund 0.2813% on next $250 million
0.2700% on next $1.25 billion
0.2475% on assets thereafter
13
