Exhibit 77(e)(3)
SUB-ADVISORY AGREEMENT
ING INVESTMENTS, LLC
AGREEMENT made this 17th day of December 2007 between ING Investments,
LLC, an Arizona limited liability company (the "Manager"), and Xxxxxxxx
Investment Management North America, Inc., a Delaware corporation (the
"Sub-Adviser").
WHEREAS, ING Investments, LLC (the "Fund") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
management investment company;
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 February 1,
2005 (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.
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.
2. Sub-Adviser Duties. Subject to the supervision of the Fund's Board of
Trustees and the Manager, the Sub-Adviser will provide a continuous investment
program for each Series' investment 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 each 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
each 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
Trustees, 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, 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 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 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 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.
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(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, and 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 record keeping 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 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 of
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 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 22(b)(7) 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 complete and deliver to the Manager by the
10th business day of each month a written report on each Series of the
Fund that contains the following information as of the immediately
previous month's end.
(i) 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;
(ii) Composition of the assets of each Series' portfolio and
the impact of key portfolio holdings and sector concentrations on
the Series; and
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(iii) Confirmation of each Series' current investment
objective and Sub-Adviser's projected plan to realize the Series'
investment objectives.
(c) The Sub-Adviser will contact Morningstar to clarify any style
box conflicts with each Series' style and the anticipated timeframe in
which Morningstar will remedy such conflicts, if any.
(d) With respect to any investments, including, but not limited, to
repurchase and reverse repurchase agreements, derivatives contracts,
futures contracts, International Swaps and Derivatives Association, Inc.
Master Agreements, and options on futures contracts ("futures"), which are
permitted to be made by the Sub-Adviser in accordance with this Agreement
and the investment objectives and strategies of the Series, as outlined in
the Registration Statement for the Trust, the Manager hereby authorizes
and directs the Sub-Adviser to do and perform every act and thing
whatsoever necessary or incidental in performing its duties and
obligations under this Agreement including, but not limited to, executing
as agent on behalf of each Series, brokerage agreements and other
documents to establish, operate and conduct all brokerage or other trading
accounts, and executing as agent on behalf of each Series, such agreements
and other documentation as may be required for the purchase or sale,
assignment, transfer and ownership of any permitted investment, including
limited partnership agreements, repurchase and derivative master
agreements, including any schedules and annexes to such agreements,
releases, consents, elections and confirmations. The Manager acknowledges
and understands that it will be bound by any such trading accounts
established, and agreements and other documentation executed, by the
Sub-Adviser for such investment purposes.
(e) 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 (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.
(f) The Sub-Adviser will provide reports to the Fund's Board of
Trustees for consideration at meetings of the Board of Trustees on the
investment program for each Series and the issuers and securities
represented in each Series' portfolio, and will furnish the Fund's Board
of Trustees with respect to each Series such periodic and special reports
as the 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 each Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
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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 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 regularly to the Fund's Board of 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 and for their activities in connection
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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. In
addition, if the Fund is required, under applicable law, to supplement the
Registration Statement because of a change requested by the Sub-Adviser, the
Sub-Adviser will reimburse the Fund and/or the Manager for the cost of
preparing, printing and distributing such supplement, unless the Sub-Adviser is
requesting the change in order to comply with an applicable law, rule or
regulation.
6. Compensation. For the services provided to each 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. 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, 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 five 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 five 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.
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8. 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 (i) 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 (ii) 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
(i) 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 (ii) 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.
9. 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-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
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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.
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.
12. Prohibited Conduct. 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 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.
13. 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.
14. 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.
15. 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
(a) 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 (b) 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 gross 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.
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16. 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 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 15 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.
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(c) The Manager shall not be liable under Paragraph (a) of this
Section 16 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 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 16 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
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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.
17. Duration and Termination.
(a) With respect to each Series identified as a Series on Schedule A
hereto as in effect on the date of this Agreement, unless earlier
terminated with respect to any Series, this Agreement shall continue in
full force and effect through November 30, 2009. Thereafter, unless
earlier terminated with respect to a Series, the Agreement shall continue
in full force and effect with respect to each such Series for periods of
one year, provided that such continuance is specifically approved at least
annually by (i) the vote of a majority of the Board of Trustees of the
Fund, or (ii) the vote of a majority of the outstanding voting shares of
the Series (as defined in the 1940 Act), and provided that such
continuance is also approved by the vote of a majority of the Board of
Trustees of the Fund who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of the Fund or the Manager, cast in
person at a meeting called for the purpose of voting on such approval.
With respect to any Series that was added to Schedule A hereto as a
Series after the date of this Agreement, the Agreement shall become
effective on the date Schedule A is amended to reflect the addition of
such Series as a Series under the Agreement, subject to the condition that
the Fund's Board of Trustees, including a majority of those Trustees who
are not interested persons (as such term is defined in the 0000 Xxx) of
the Manager, and the shareholders of such Series, shall have approved this
Agreement. Unless terminated earlier as provided herein with respect to
any such Series, the Agreement shall continue in full force and effect for
a period of two years from the date of its effectiveness (as identified
above) with respect to that Series. Thereafter, unless earlier terminated
with respect to a Series, the Agreement shall continue in full force and
effect with respect to each such Series for periods of one year, provided
that such continuance is specifically approved at least annually by (i)
the vote of a majority of the Board of Trustees of the Fund, or (ii) vote
of a majority of the outstanding voting shares of such Series (as defined
in the 1940 Act), and provided that such continuance is also approved by
the vote of a majority of the Board of Trustees of the Fund who are not
parties to this Agreement or "interested persons" (as defined in the 1940
11
Act) of the Fund or the Manager, 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 a Series shall be effective to continue this
Agreement with respect to such Series notwithstanding (i) that this
Agreement has not been approved by the holders of a majority of the
outstanding shares of any other Series or (ii) that this agreement has not
been approved by the vote of a majority of the outstanding shares of the
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 any Series covered by this Agreement: (i) by the Manager at any
time, upon sixty (60) days' written notice to the Sub-Adviser and the
Fund, (ii) at any time without payment of any penalty by the Fund, by the
Fund's Board of Trustees or a majority of the outstanding voting
securities of each Series, upon sixty (60) days' written notice to the
Manager and the Sub-Adviser, or (iii) 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 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, 13, 14, 15 and 16 of this Agreement shall remain in
effect, as well as any applicable provision of this Section numbered 17
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.
12
If to the Fund:
ING Investments, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
If to the Sub-Adviser:
Xxxxxxxx Investment Management North America, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
18. 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
until approved as required by applicable law. If shareholder approval of an
amendment is required pursuant to the 1940 Act and related rules,
interpretations, and SEC staff inaction letters, no such amendment shall become
effective until approved by vote of the majority of the outstanding shares of
the Trust/Corporation. Otherwise, a written amendment of this Agreement is
effective upon the approval of the Board and the Manager.
19. 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 17 of this Agreement, this
Agreement may only be assigned by any party 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.
13
(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.
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
XXXXXXXX INVESTMENT MANAGEMENT NORTH AMERICA, INC.
By: /s/ Illegible
---------------------------------
Head of Product Development
Title
14
SCHEDULE A
with respect to the
SUB-ADVISORY AGREEMENT
between
ING INVESTMENTS, LLC
and
XXXXXXXX INVESTMENT MANAGEMENT NORTH AMERICA, INC.
Series Annual Sub-Adviser Fee
------ ----------------------
(as a percentage of average daily net
assets of the Series managed by
Sub-Adviser)
ING International SmallCap 0.65% on first $200 million
Multi-Manager Fund 0.60% on next $200 million
0.55% in excess of $400 million
15
