EXHIBIT (d)(6)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 5th day of December, 2002 between ING Investments,
LLC, an Arizona limited liability company (the "Manager"), and ING Investment
Management Advisors B.V., an indirect wholly owned subsidiary of ING Groep N.V.,
domiciled in the Hague, The Netherlands (the "Sub-Adviser").
WHEREAS, ING Mutual Funds (the "Fund") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
management investment 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 May 9,
2001 (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, the Board of Directors/Trustees has authorized the Manager to
enter into an Agreement with the Sub-Adviser.
NOW, THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Manager and the
Sub-Adviser as follows:
1. Appointment. The Manager hereby appoints the Sub-Adviser to
act as the investment adviser and manager to the series of the Fund set forth on
Schedule A hereto (the "Series") 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.
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2. Sub-Adviser Duties. Subject to the supervision of the Fund's
Board of Directors/Trustees 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
Directors/Trustees of which the Sub-Adviser has been sent a copy, and which
apply to the duties of the Sub-Adviser, 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-Adviser 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 vote all proxies solicited by or with
respect to the issuers of securities in which assets of a Series are invested in
the discretion of the Sub-Adviser based upon the best interests of the
shareholders of such Series. The Sub-Adviser will maintain appropriate records
detailing its voting of proxies on behalf of the Fund and will provide to the
Fund at least quarterly a report setting forth the proposals voted on and how
the Series' shares were voted since the prior report, including the name of the
corresponding issuers.
(iii) 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
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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 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.
(iv) The Sub-Adviser will assist the custodian, portfolio
accounting agent and fund administrator 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 of
Directors/Trustees, 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
20th day following the end of each of the first three fiscal quarters of the
Series and the 15th day following the end of the Series' 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.
(vii) 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 10 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, the Series' investment books and records
maintained by the Sub-Adviser (which shall not include the books and records
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 (the "Advisers Act"), as well
as other applicable laws. The Sub-Adviser will furnish to regulatory authorities
having the requisite authority over the Fund, the Manager or the Sub-Adviser any
information or reports not readily available at the custodian or the portfolio
accounting agent in connection with the services provided hereunder in respect
to the Series which may be requested in order to ascertain whether
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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 Manager for the
Fund's Board of Directors/Trustees 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 of
Directors/Trustees with respect to the Series such periodic and special reports
as the Directors/Trustees and the Manager may reasonably request.
3. Broker-Dealer Selection. The Sub-Adviser is authorized to make
decisions to buy and sell securities and other investments for 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, 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, by other
aspects of the portfolio execution services offered. Subject to such policies as
the Fund's Board of Directors/Trustees or Manager may determine and consistent
with Section 28(e) of the Securities Exchange Act of 1934, the Sub-Adviser shall
not be deemed to have acted unlawfully or to have breached any duty created by
this Agreement or otherwise solely by reason of its having caused a Series to
pay a broker-dealer for effecting a portfolio investment transaction in excess
of the amount of commission another broker-dealer would have charged for
effecting that transaction, if the Sub-Adviser determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker-dealer, viewed in terms
of either that particular transaction or the Sub-Adviser's or the Manager's
overall responsibilities with respect to the Series and to their respective
other clients as to which they exercise investment discretion. The Sub-Adviser
will consult with the Manager to the end that portfolio transactions on behalf
of a 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 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
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regularly to the Fund's Board of Directors/Trustees 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 Sub-Adviser will
provide the Manager with a copy of the Sub-Adviser's Form ADV, Part II at the
time the Form ADV is 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 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 annual 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 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 of Trustees may adopt, including any written
compliance procedures.
(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
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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 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 Fund and the Manager, or an investment
adviser designated by the Manager, shall have access at all reasonable times and
on reasonable notice to all records maintained by the Sub-Adviser. The
Sub-Adviser agrees that it will surrender copies of any such records to the
Funds promptly upon such Fund's request provided that the Sub-Adviser shall keep
the originals of such records to the extent necessary for the Sub-Adviser to
comply with applicable laws, including Rule 31a-3 under the 1940 Act. The
Sub-Adviser further agrees to preserve such records for such time periods as may
be prescribed by Rule 31a-2 under the 1940 Act, provided that before disposing
of any such records, Sub-Adviser will advise the Adviser and deliver the same to
Manager if so requested.
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 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 this 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
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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, (2) shall bear no responsibility and shall not be subject to
liability for the accuracy of any information provided to the Sub-Adviser by
another entity and shall incur no liability in relying on such information, and
(3) shall not be liable for, or be 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 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 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
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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 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, 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 Sub-Adviser Indemnified Person, adequately represent the
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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) 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.
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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 of
Directors/Trustees, including a majority of those Directors/Trustees who are not
interested persons (as such term is defined in the 0000 Xxx) of the Manager or
the Sub-Adviser, and the shareholders of the Series, shall have approved this
Agreement. Unless terminated as provided herein, this Agreement shall remain in
full force and effect with respect to the Series until the Reapproval Date set
forth for the Series on Schedule B to the Agreement, and shall continue on an
annual basis thereafter with respect to the Series provided that such annual
continuance is specifically approved each year by (1) the Board of
Directors/Trustees of the Fund, or by the vote of a majority of the outstanding
voting securities (as defined in the 0000 Xxx) of each Series, and (2) the vote
of a majority of those Directors/Trustees who are not parties to this Agreement
or interested persons (as such term is defined in the 0000 Xxx) of any such
party to this Agreement cast in person at a meeting called for the purpose of
voting on such approval. However, any approval of this Agreement by the holders
of a majority of the outstanding shares (as defined in the 0000 Xxx) of the
Series shall be effective to continue this Agreement with respect to the 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 Fund, unless such approval shall be required by any other
applicable law or otherwise. Notwithstanding the foregoing, this Agreement may
be terminated with respect to one or more of the Series covered by this
Agreement: (a) by the Manager at any time, upon sixty (60) days' written notice
to the Sub-Adviser and the Fund, (b) at any time without payment of any penalty
by the Fund, by the Fund's Board of Directors/Trustees or a majority of the
outstanding voting securities of the Series, upon sixty (60) days' written
notice to the Manager and the Sub-Adviser, or (c) by the Sub-Adviser upon three
(3) months' written notice unless 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
three (3) additional months beyond the initial three-month notice period;
provided, however, that the Sub-Adviser may terminate this Agreement at any time
without penalty, effective upon written notice to the Manager and the 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 ceases to be a wholly owned subsidiary of ING Groep N.V., 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.
Upon termination for any reason, the Sub-Adviser shall forthwith
deliver to the Fund all original written records of the Fund where possible and
copies of said records if originals are not available. 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
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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 numbered 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.
(b) Notices.
Except as otherwise provided, any notice given hereunder shall be in
writing and shall be given by facsimile or other means of electronic
communication or by delivery as hereafter provided. Any notice if sent by means
of electronic communication shall be deemed to have been received upon express
acknowledgement, and notice delivered by hand or sent by internationally
recognized overnight courier service shall be deemed to have been received at
the time of delivery to the applicable address set forth below or at such other
address as a party may from time to time specify in writing to the other party.
If to the Fund:
ING Mutual Funds
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 XXX
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Email: Xxx.Xxxxxxxx@XXXXxxxx.xxx
If to the Manager:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 XXX
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Email: Xxxx.Xxxxxx@XXXXxxxx.xxx
If to the Sub-Adviser:
ING Investment Management Advisors B.V.
Prinses Beatrixlaan 15
2595 AK The Hague, The Netherlands
Attention: Xxxxxxx Xxxxxxxxxxx
Facsimile: 31.70.378 1324
Email: Xxxxxxx.Xxxxxxxxxxx@xxxxx.xxx
-11-
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 Fund. Otherwise, a written
amendment of this Agreement is effective upon the approval of the Board of
Directors/Trustees 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 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) This Agreement may be assigned by any party only with the
prior written consent of the other parties.
(e) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby, and to this extent, the provisions of
this Agreement shall be deemed to be severable.
(f) Nothing herein shall be construed as constituting the
Sub-Adviser as an agent or co-partner of the Manager, or constituting the
Manager as an agent or co-partner of the Sub-Adviser.
(g) This agreement may be executed in counterparts.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
ING INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
ING INVESTMENT MANAGEMENT ADVISORS B.V.
By: [ILLEGIBLE]
---------------------------
-13-
SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
SUB-ADVISED FUNDS
EFFECTIVE DECEMBER 5, 2002
NAME OF SERIES ANNUAL SUB-ADVISER FEE
ING Emerging Countries Fund 0.575% of net assets
ING Russia Fund 0.60% of net assets
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SCHEDULE B
TO THE
SUB-ADVISORY AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
EFFECTIVE DECEMBER 5,2002
The Reapproval date of this Agreement with respect to the Fund is as follows:
NAME OF FUND REAPPROVAL DATE
ING Emerging Countries Fund September 1, 2004
ING Russia Fund September 1, 2004
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[ING FUNDS LOGO]
JULY 10, 2003
ING Investment Management Advisors B.V.
Attn: Xxxxxxx Xxxxxxx
Prinses Xxxxxxxxxxx 00
0000 XX Xxx Xxxxx, Xxx Xxxxxxxxxxx
Pursuant to Section 1 of the Sub-Adviser Agreement dated December 5,
2002 between ING Investments, LLC and ING Investment Management Advisors B.V.
(the "Agreement") we hereby notify you of our intention to retain you as
Sub-Adviser to render investment advisory services to ING Global Equity Dividend
Fund, a newly established series of ING Mutual Funds, upon all of the terms and
conditions set forth in the Agreement. Upon your acceptance, the Agreement has
been modified to give effect to the foregoing by adding the "ING Global Equity
Dividend Fund" to Schedule A and Schedule B of the Agreement. The Amended
Schedule A, with the annual investment management fees indicated for the series,
and Amended Schedule B are attached hereto.
Please signify your acceptance to act as Sub-Adviser under the
Agreement with respect to ING Global Equity Dividend Fund by signing below.
Very sincerely,
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Executive Vice President
ING Investments, LLC
ACCEPTED AND AGREED TO:
ING Investment Management Advisors B.V.
By /s/ X. Xxxxxxxxxx /s/ B. Pestiavx
------------------------------------
X. Xxxxxxxxxx B. Pestiavx
Its authorized signatures
July 30, 2003
0000 X. Xxxxxxxxxx Xxxxx Xx. Tel: 000-000-0000 ING Investments, LLC
Xxxxxxxxxx, XX 00000-0000 Fax: 000-000-0000
xxx.xxxxxxxx.xxx
AMENDED
SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
SUB-ADVISED FUNDS
NAME OF SERIES ANNUAL SUB-ADVISER FEE
ING Emerging Countries Fund 0.575% of net assets
ING Russia Fund 0.60% of net assets
ING Global Equity Dividend Fund* 0.20% of net assets
*This Amended Schedule A to the Sub-Advisory Agreement will be effective with
respect to this Fund upon the effective date of the initial Registration
Statement with respect to the Fund.
AMENDED
SCHEDULE B
TO THE
SUB-ADVISORY AGREEMENT
BY AND BETWEEN
ING INVESTMENTS, LLC
AND
ING INVESTMENT MANAGEMENT ADVISORS B.V.
The Reapproval date of this Agreement with respect to each Fund is as follows:
NAME OF FUND REAPPROVAL DATE
ING Emerging Countries Fund September 1, 2004
ING Russia Fund September 1, 2004
ING Global Equity Dividend Fund* September 1, 2004
*This Amended Schedule B to the Sub-Advisory Agreement will be effective with
respect to this Fund upon the effective date of the initial Registration
Statement with respect to the Fund.
FIRST AMENDMENT TO SUB-ADVISORY AGREEMENT
ING MUTUAL FUNDS
This First Amendment, effective as of July 1, 2003, amends the
Sub-Advisory Agreement (the "Agreement") dated the 5th day of December, 2002
between ING Investments, LLC, an Arizona limited liability company (the
"Manager") and ING Investment Management Advisors B.V., an indirect wholly owned
subsidiary of ING Groep N.V., domiciled in the Hague, The Netherlands (the
"Sub-Adviser") with regards to ING Emerging Countries Fund, ING Russia Fund, and
ING Global Equity Dividend Fund, each a Series of ING Mutual Funds.
W I T N E S S E T H
WHEREAS, the parties desire to amend the Agreement and agree that the
amendments will be effective as of July 1, 2003.
NOW, THEREFORE, the parties agree as follows:
1. Section 2(a)(ii) of the Agreement is hereby deleted in its
entirety and replaced with the following:
(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 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.
2. In all other respects, the Agreement is hereby confirmed and
remains in full force and effect.
-1-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
ING INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
ING INVESTMENT MANAGEMENT ADVISORS B.V.
BY: /s/ X. Xxxxxxxxxx /s/ B. Pestiavx
----------------------------------
Name: X. Xxxxxxxxxx B. Pestiavx
Title: authorized signatures
July 31, 2003
-2-
