SUB-SUB-ADVISORY AGREEMENT FOR ING INVESTORS TRUST ING INTERNATIONAL SMALLCAP MULTI-MANAGER FUND
Exhibit
77(e)(10)
SUB-SUB-ADVISORY
AGREEMENT FOR
ING
INTERNATIONAL SMALLCAP MULTI-MANAGER FUND
THIS SUB-ADVISORY AGREEMENT is made as
of this 28th day
of April, 2008, by and among DIRECTED SERVICES, LLC, a Delaware limited
liability company, ▇▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT NORTH AMERICA INC., (“SIMNA”)
a corporation organized under the laws of the State of Delaware with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT NORTH AMERICA LIMITED (“SIMNA
Limited”) a UK corporation with its principal office and place of business at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇.
W
I T N E S S E T H
WHEREAS, Directed Services LLC (“DSL”),
a Delaware limited liability company, has retained SIMNA as its sub-adviser to
render investment advisory services to the ING International Smallcap
Multi-Manager Fund (the “Fund”), a series of a Delaware business trust (the
“Trust”) registered as an investment company under the Investment Company Act of
1940, as amended (the "1940 Act") pursuant to a Sub-Advisory Agreement, dated
April 28, 2008 (the “DSL Advisory Agreement”); and
WHEREAS,
SIMNA desires to employ SIMNA Limited as an investment sub-adviser to the Fund,
and SIMNA Limited is willing to render investment sub-advisory services to
SIMNA, subject to and in accordance with the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the
mutual promises and undertakings set forth in this Agreement, SIMNA and SIMNA
Limited hereby agree as follows:
1. Appointment of SIMNA
Limited. DSL and SIMNA hereby employ SIMNA Limited as
investment sub-adviser for the assets of the Fund, on the terms and conditions
set forth herein, and subject to the direction of SIMNA. SIMNA Limited accepts
such employment and agrees to render the services herein set forth, for the
compensation herein provided.
2. Duties of SIMNA
Limited.
(a) DSL
and SIMNA employ SIMNA Limited to act as its sub-advisor in managing the
investment and reinvestment of the assets of the Fund in accordance with the DSL
Advisory Agreement; to continuously review, supervise, and administer an
investment program for the Fund; to determine in its discretion the securities
to be purchased or sold and the portion of such assets to be held uninvested; to
provide the Trust (either directly or through SIMNA) with all records concerning
the activities of SIMNA Limited that the Trust is required to maintain; and to
render or assist SIMNA in rendering regular reports to the Trust’s officers and
the Board of Trustees concerning the discharge of SIMNA Limited’s
responsibilities hereunder. SIMNA Limited will discharge the foregoing
responsibilities subject to the supervision and oversight of DSL, SIMNA, the
Trust’s officers and the Board of Trustees and in compliance with the objective,
policies, and limitations set forth in the Fund’s prospectus and Statement of
Additional
Information,
any additional operating policies or procedures that the Fund communicates to
SIMNA Limited in writing (either directly or through SIMNA), and applicable laws
and regulations. SIMNA Limited agrees to provide, at its own expense,
the office space, furnishings and equipment, and the personnel required by it to
perform the services on the terms and for the compensation provided
herein.
(b) SIMNA
and SIMNA Limited acknowledge and agree that SIMNA is ultimately responsible for
all aspects of providing to the Fund the services required of SIMNA under the
DSL Advisory Agreement. Accordingly, SIMNA Limited shall discharge
its duties and responsibilities specified in paragraph (a) of this Section 2 and
elsewhere in this Agreement subject at all times to the direction, control,
supervision, and oversight of SIMNA. In furtherance thereof, SIMNA
Limited shall, without limitation, (i) make its offices available to
representatives of DSL and SIMNA for on-site inspections and consultations with
the officers and applicable portfolio managers of SIMNA Limited responsible for
the day-to-day management of the Fund, (ii) upon request, provide DSL and SIMNA
with copies of all records it maintains regarding its management of the Fund and
(iii) report to SIMNA each calendar quarter and at such other times as DSL or
SIMNA may reasonably request regarding (A) SIMNA Limited’s implementation of the
Fund’s investment program and the Fund’s portfolio composition and performance,
(B) any policies and procedures implemented by SIMNA Limited to ensure
compliance with United States securities laws and regulations applicable to
SIMNA Limited and the Fund, (C) the Fund’s compliance with the objective,
policies, and limitations set forth in the Fund’s prospectus and Statement of
Additional Information and any additional operating policies or procedures that
the Fund communicates to SIMNA Limited in writing (either directly or through
SIMNA) and (D) such other matters as DSL or SIMNA may reasonably
request.
3. Securities Transactions. Among
its responsibilities, SIMNA Limited shall select the brokers or dealers that
will execute purchases and sales of securities for the Fund, and is directed to
use its best efforts to obtain the best available price and most favorable
execution for such transactions, subject to the Fund’s or DSL’s written policies
and procedures provided to SIMNA Limited (either directly or through SIMNA), and
consistent with Section 28(e) of the Securities Exchange Act of 1934. SIMNA
Limited will promptly communicate or assist SIMNA in communicating to the Fund’s
officers and the Board of Trustees such information relating to the portfolio
transactions SIMNA Limited has directed on behalf of the Fund as DSL or SIMNA or
such officers or the Board may reasonably request.
4. Compensation of SIMNA
Limited. For the services to be rendered by SIMNA Limited as
provided in this Agreement, SIMNA (and not the Trust or the Fund) will pay to
SIMNA Limited at the end of each of month an amount equal to fifty percent (50%)
of all fees actually paid by DSL to SIMNA in the prior month under Section 6 and
Schedule A of the
DSL Advisory Agreement; provided, however, that SIMNA
Limited’s fee payable hereunder for any period shall be reduced such that SIMNA
Limited bears fifty percent (50%) of any voluntary fee waiver observed or
expense reimbursement borne by SIMNA with respect to the Fund for such
month. For clarity,
SIMNA (and not the Trust, the Fund or DSL) shall be obligated to pay SIMNA Limited
fees hereunder for any period only out of and following SIMNA’s receipt from DSL
of advisory fees pursuant to Section 6 of the DSL Advisory Agreement for such
period. If this
Agreement becomes effective or terminates before the end of any month, the fee
for the period from the effective date to the end of the month or from the
beginning of such month to the date of termination, as the case may be, shall be
prorated according to the proportion that such partial month bears to the full
month in which such effectiveness or termination occurs.
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5. Compliance. SIMNA
Limited agrees to comply with all policies, procedures, or reporting
requirements that the Board of Trustees reasonably adopts and communicates to
SIMNA Limited in writing (either directly or through SIMNA) including, without
limitation, any such policies, procedures, or reporting requirements relating to
soft dollar or other brokerage arrangements. “Applicable Law” means (i) the
“federal securities laws” as defined in Rule 38a-1(e)(1) under the 1940 Act, as
amended from time to time, and (ii) any and all other laws, rules, and
regulations, whether foreign or domestic, in each case applicable at any time
and from time to time to the investment management operations of SIMNA Limited
in relation to the Fund.
6. Status of SIMNA
Limited. SIMNA Limited is registered as an investment adviser
pursuant to the Investment Advisers Act of 1940, as amended, and shall notify
the other parties hereto promptly should this status change, or if SIMNA Limited
considers it reasonably likely that such status shall change. The
services of SIMNA Limited to the Fund or SIMNA under this Agreement are not to
be deemed exclusive, and SIMNA Limited will be free to render similar services
to others so long as its services to the Fund and SIMNA under this Agreement are
not impaired thereby. SIMNA Limited will be deemed to be an
independent contractor and will, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund or the Trust
7. Liability/Indemnification. SIMNA Limited shall have no duty to
indemnify DSL for any losses resulting from the
exercise of SIMNA Limited’s duties hereunder, except that no provision of this
Agreement will be deemed to protect SIMNA Limited against any liability
to DSL or SIMNA or to the Fund or its shareholders to which it might otherwise
be subject by reason of any willful misfeasance, bad faith,
or negligence in the performance of its duties or the reckless
disregard of its obligations under this Agreement. Furthermore,
nothing in this Agreement shall be deemed to create any liability or duty of
indemnification on the part of DSL to SIMNA or SIMNA Limited that is in addition
to any that exists under any other agreement, including without limitation for
any losses whatsoever suffered by SIMNA or SIMNA Limited. For the
elimination of doubt, this clause is not intended to amend any provision of any
other agreement entered into between or among any of the parties hereto creating
any liability or duty to indemnify on the part of any of the parties, including,
without limitation, paragraphs 14 and 15 of the Sub-Advisory Agreement entered
into on or about April 28, 2008 between DSL and SIMNA.
8. Duration; Termination; Notices;
Amendment. Unless sooner terminated as provided herein, this
Agreement shall continue in full force and effect through [November 30,
2009]. Thereafter, unless sooner terminated, this Agreement shall
continue in full force and effect 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 Fund (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 ▇▇▇▇ ▇▇▇) of the Fund or the Manager,
cast in person at a meeting called for the purpose of voting on
such
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approval,
but shall not remain in effect to the extent that the subadvisory agreement
between DSL and SIMNA or the DSL Advisory Agreement
has been terminated. Notwithstanding the foregoing, this Agreement
may also be terminated, without the payment of any penalty, by DSL or SIMNA (i)
upon 60 days' written notice to SIMNA Limited; or (ii) upon material breach by
SIMNA Limited of any representations and warranties set forth in this Agreement,
if such breach has not been cured within 20 days after written notice of such
breach; SIMNA Limited may terminate this Agreement at any time, without payment
of any penalty, (1) upon 60 days' written notice to DSL or SIMNA; or (2) upon
material breach by SIMNA of any representations and warranties set forth in the
Agreement, if such breach has not been cured within 20 days after written notice
of such breach. This Agreement shall terminate automatically in the event of its
assignment (as defined in the ▇▇▇▇ ▇▇▇) or upon the termination of the DSL
Advisory Agreement. Any notice under this Agreement will be given in
writing, addressed and delivered, or mailed postpaid, to the other party as
follows:
If to
SIMNA, at:
▇▇▇▇▇▇▇▇
Investment Management North America Inc.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
If to
SIMNA Limited, at:
▇▇▇▇▇▇▇▇
Investment Management North America Limited
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇.▇. ▇▇▇▇ ▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
▇▇▇ ▇▇▇▇ ▇▇▇▇
If to DSL
at:
Directed
Services, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
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This Agreement may be amended by mutual
consent of the parties hereto.
9. Severability. If
any provision of this Agreement will be held or made invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement will not
be affected thereby.
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10. Confidentiality. SIMNA Limited
shall keep confidential any and all information obtained in connection with the
services rendered hereunder and shall not disclose any such information to any
person other than SIMNA, the Trust, the Board of Trustees, DSL, and any
director, officer, or employee of SIMNA, the Trust, or DSL, except (i) with the
prior written consent of the Trust, (ii) as required by law, regulation, court
order, or the rules or regulations of any self-regulatory organization,
governmental body, or official having jurisdiction over SIMNA or SIMNA Limited,
or (iii) for information that is publicly available other than due to disclosure
by SIMNA Limited or its affiliates or becomes known to SIMNA Limited from a
source other than SIMNA, the Trust, the Board of Trustees, or DSL.
11. Proxy Policy. SIMNA
Limited acknowledges that neither SIMNA nor SIMNA Limited will have a duty to
vote any proxy solicited by or with respect to the issuers of securities in
which assets of the Fund are invested unless DSL gives SIMNA or SIMNA Limited
written instructions to the contrary. SIMNA Limited agrees that it
will immediately forward any proxy solicited by or with respect to the issuers
of securities in which assets of the Fund are invested to DSL or to any agent of
DSL designated by the DSL in writing. Further, SIMNA Limited agrees
to carry out or assist SIMNA Inc. to carry out the responsibilities set forth
under Section 2(i) of the DSL Advisory Agreement.
12. Governing Law. All
questions concerning the validity, meaning, and effect of this Agreement shall
be determined in accordance with the laws (without giving effect to the
conflict-of-interest law principles thereof) of the State of Delaware applicable
to contracts made and to be performed in that state.
13. Treatment of Fund Under FSA
Rules. The Fund will be treated as an Intermediate Customer
under rules of the Financial Services Authority in the United
Kingdom.
14.
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Sub-Advisory Agreement to
be executed effective as of the date first set forth herein.
▇▇▇▇▇▇▇▇
INVESTMENT MANAGEMENT
NORTH
AMERICA INC.
By:
/s/ ▇▇▇▇▇▇▇▇▇
Mazza________________________
Name: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Authorized
Signatory
▇▇▇▇▇▇▇▇
INVESTMENT MANAGEMENT
NORTH
AMERICA LIMITED
By:
/s/ ▇▇▇▇ ▇.
Hemenetz_____________________
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized
Signatory
DIRECTED
SERVICES LLC
By:
/s/ ▇▇▇▇
Modic___________________________
Name:
▇▇▇▇ ▇▇▇▇▇
Title: Vice
President
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