EXHIBIT (d)(8)
SUB-ADVISORY AGREEMENT
AGREEMENT made this 01st day of March, 2002 between ING
Investments, LLC, an Arizona limited liability company (the "Manager"), and AW
Advisors, LLC, a Delaware limited liability company (the "Sub-Adviser").
WHEREAS, ING Equity Trust (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;
WHEREAS, the Fund may offer shares of additional series in the
future;
WHEREAS, pursuant to an Investment Management Agreement, dated
September 1, 2000, as amended on November 2, 2001 and as further amended March
1, 2002 (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 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's 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' 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 U.S. 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 services of the Sub-Adviser to the Fund under
this Agreement are to be deemed exclusive inasmuch as the Sub-Adviser (including
all officers, directors, employees, owners, principals, successors, parents,
subsidiaries, and affiliates of the Sub-Adviser) agrees that it shall not
directly or indirectly perform advisory duties as herein specified in this
Section 2 and its subparts for any person or entity registered under the 1940
Act other than the Fund during the term of this Agreement without the prior
express written consent of the Manager. Such written consent shall not be
unreasonably withheld if the Manager determines in its discretion that the
Sub-Adviser seeks to provide advisory services to another registered investment
company that neither has nor proposes to have investment objectives and policies
similar to those of any of the Series.
(b) The Sub-Adviser will comply 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 of which the Sub-Adviser has been sent a copy, and the provisions of
the Registration Statement of the Fund filed under the Securities Act of 1933,
as amended (the "1933 Act"), and the 1940 Act, as supplemented or amended, of
which the Sub-Adviser has received a copy, and with the Manager's portfolio
manager operating policies and procedures as in effect on the date hereof, as
such policies and procedures may be revised or amended by the Manager and agreed
to by the Sub-Adviser. In carrying out its duties under the Sub-Advisory
Agreement, the Sub-Adviser will comply with the following policies and
procedures:
(i) The Sub-Adviser will manage each Series so that it
meets the 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 the Series are
invested consistent with any procedures or guidelines promulgated by the Board
or the Manager or, if none, in the discretion of the Sub-Adviser based upon the
best interests of the 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.
- 2 -
(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, 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 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 day following the end of each of the first three fiscal quarters
of each Series and the 10th day following the end of each 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 Form N-1A,
promulgated pursuant to the 1933 and 1940 Acts, 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 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 days, the Manager and its affiliated persons may use and
distribute such sales literature or other promotional material.
(c) The Sub-Adviser will make available to the Fund and
the Manager, promptly upon request, any of the Series' investment records and
ledgers maintained by the Sub-Adviser (which shall not include the records and
ledgers maintained by the custodian or portfolio accounting agent for the Fund)
as are necessary to assist the Fund and the Manager to comply with requirements
of the 1940 Act and the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), as well as other applicable laws. The Sub-Adviser will furnish
to regulatory authorities having the requisite authority any information or
reports in connection with such services in respect to the Series which may be
requested in order to ascertain whether the operations of the Fund are being
conducted in a manner consistent with applicable laws and regulations.
- 3 -
(d) The Sub-Adviser will provide reports to the Fund's
Board of Trustees for consideration at meetings of the Board on the investment
program for each Series and the issuers and securities represented in each
Series' portfolio, and will furnish the Fund's Board 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, to select a broker-dealer to effect a transaction,
and to negotiate 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
Series, 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 reasonable business
judgement and 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, as amended (the "1934 Act"), 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 so 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-
- 4 -
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 any
time the Form ADV is updated.
5. Expenses. During the term of this Agreement, the
Sub-Adviser will pay all expenses incurred by it and its staff and for their
activities in connection with its portfolio management duties under this
Agreement. The Manager or the Fund shall be responsible for all the expenses of
the Fund's operations.
6. Compensation. For the services provided to 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. 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 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
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
- 5 -
investment adviser; or has commenced proceedings or an investigation that may
result in any of these actions, or (2) upon having a reasonable basis for
believing that the Series has ceased to qualify or might not qualify as a
regulated investment company under Subchapter M of the Internal Revenue Code.
8. Books and Records. The Sub-Adviser hereby agrees that
all records which it maintains for the Series (including but not limited to
documents, manuals, computer disks and CD-ROMs) are the property of the Fund and
further agrees to surrender promptly to the Fund any of such records upon the
Fund's or the Manager's request in compliance with the requirements of Rule
31a-3 under the 1940 Act, although the Sub-Adviser may, at its own expense, make
and retain a copy of such records. The Sub-Adviser further agrees to preserve
for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-1 under the 1940 Act.
9. Cooperation; Confidentiality. Each party to this
Agreement agrees to cooperate with the other party and with all appropriate
governmental authorities having the requisite jurisdiction (including, but not
limited to, the SEC) in connection with any investigation or inquiry relating to
this Agreement or the Fund. Subject to the foregoing, the Sub-Adviser shall
treat as confidential all information pertaining to the Fund and actions of the
Fund, the Manager and the 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 the Fund.
10. Representations Respecting Sub-Adviser. The Manager
agrees that neither the Manager, nor affiliated persons of the Manager, shall
give any information or make any representations or statements in connection
with the sale of shares of the Series concerning the Sub-Adviser or the Series
other than the information or representations contained in the Registration
Statement, prospectus, or statement of additional information for the Fund's
shares, as they may be amended or supplemented from time to time, or in reports
or proxy statements for the Fund, or in sales literature or other promotional
material approved in advance by the Sub-Adviser, except with the prior
permission of the Sub-Adviser.
11. Control. Notwithstanding any other provision of the
Agreement, it is understood and agreed that the Fund shall at all times retain
the ultimate responsibility for and control of all functions performed pursuant
to this Agreement and has reserved the right to reasonably direct any action
hereunder taken on its behalf by the Sub-Adviser.
12. Liability. Except as may otherwise be required by the
1940 Act or the rules thereunder or other applicable law, the Manager agrees
that the Sub-Adviser, any affiliated person of the Sub-Adviser, and each person,
if any, who, within the meaning of Section 15 of the 1933 Act controls the
Sub-Adviser (1) shall bear no responsibility and shall not be subject to any
liability for any act or omission respecting any series of the Fund that is not
a Series hereunder, and (2) shall not be liable for, or subject to any damages,
expenses, or losses in connection with,
- 6 -
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.
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 subject by reason of
willful misfeasance, bad faith, or gross 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-
- 7 -
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, gross 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 interests of the Sub-Adviser Indemnified Person, the Manager will, at its
own expense, assume the defense with counsel to the Manager and, also at its own
expense, with separate counsel to the Sub-Adviser Indemnified Person, which
counsel shall be satisfactory to the Manager and to the Sub-Adviser Indemnified
Person. The Sub-Adviser Indemnified Person shall bear the fees and expenses of
any additional counsel retained by it, and the Manager shall not be liable to
the Sub-Adviser Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Manager shall not have the right to compromise on or
settle the litigation without the prior written consent of the Sub-Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Sub-Adviser Indemnified Person.
(d) The Sub-Adviser shall not be liable under Paragraph
(b) of this Section 13 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have notified
the Sub-Adviser in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon such Manager Indemnified Person (or after such Manager
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the Sub-Adviser of any such claim shall not
relieve the Sub-Adviser from any liability which it may have to the Manager
Indemnified Person against whom such action is brought except to the extent the
Sub-Adviser is prejudiced by the failure or delay in giving such notice. In case
any such action is brought against the Manager Indemnified Person, the
Sub-Adviser will be entitled to participate, at its own expense, in the defense
thereof or, after notice to the Manager Indemnified Person, to assume the
defense thereof, with counsel satisfactory to the Manager Indemnified Person. If
the
- 8 -
Sub-Adviser assumes the defense of any such action and the selection of counsel
by the Sub-Adviser to represent both the Sub-Adviser and the Manager
Indemnified Person would result in a conflict of interests and therefore, would
not, in the reasonable judgment of the Manager Indemnified Person, adequately
represent the interests of the Manager Indemnified Person, the Sub-Adviser will,
at its own expense, assume the defense with counsel to the Sub-Adviser and, also
at its own expense, with separate counsel to the Manager Indemnified Person,
which counsel shall be satisfactory to the Sub-Adviser and to the Manager
Indemnified Person. The Manager Indemnified Person shall bear the fees and
expenses of any additional counsel retained by it, and the Sub-Adviser shall not
be liable to the Manager Indemnified Person under this Agreement for any legal
or other expenses subsequently incurred by the Manager Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation. The Sub-Adviser shall not have the right to compromise on or
settle the litigation without the prior written consent of the Manager
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Manager Indemnified Person.
14. Duration and Termination.
(a) This Agreement shall become effective on the date
first indicated above, subject to the condition that the Fund's Board of
Trustees, including a majority of those Trustees who are not interested persons
(as such term is defined in the ▇▇▇▇ ▇▇▇) of the Manager or the Sub-Adviser, and
the shareholders of each Series, shall have approved this Agreement. Unless
terminated as provided herein, this Agreement shall remain in full force and
effect with respect to each Series until the Reapproval Date set forth for such
Series on Schedule B to the Agreement, and shall continue on an annual basis
thereafter with respect to each Series provided that such annual continuance is
specifically approved each year by (1) the Board of Trustees of the Fund, or by
the vote of a majority of the outstanding voting securities (as defined in the
▇▇▇▇ ▇▇▇) of each Series, and (2) the vote of a majority of those Trustees who
are not parties to this Agreement or interested persons (as such term is defined
in the ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) of a Series shall be effective to continue this Agreement with
respect to such Series notwithstanding (1) that this Agreement has not been
approved by the holders of a majority of the outstanding shares of any other
Series or (2) 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: (1) by the Manager at any time, upon sixty (60) days'
written notice to the Sub-Adviser and the Fund, (2) 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 (3) by the Sub-Adviser upon three
months' written notice unless the Fund or the Manager requests additional tune
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
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
- 9 -
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 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.
Any notice must be in writing and shall be sufficiently given
when (1) delivered in person, (2) dispatched by telegram or electronic facsimile
transfer (confirmed in writing by postage prepaid first class air mail
simultaneously dispatched), (3) sent by internationally recognized overnight
courier service (with receipt confirmed by such overnight courier service), or
(4) sent by registered or certified mail, to the other party at the address of
such party set forth below or at such other address as such party may from time
to time specify in writing to the other party.
If to the Fund:
ING Equity Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to the Manager:
ING Investments, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- 10 -
If to the Sub-Adviser:
AW Advisors, LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
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, and no amendment of this Agreement shall be
effective until approved by an affirmative vote of (1) the holders of a majority
of the outstanding voting securities of the Series, and (2) the Trustees of the
Fund, including a majority of the Trustees of the Fund who are not interested
persons of any party to this Agreement, cast in person at a meeting called for
the purpose of voting on such approval, if such approval is required by
applicable law.
16. Miscellaneous.
(a) This Agreement shall be governed by the laws of the
State of Delaware, provided that nothing herein shall be construed in a manner
inconsistent with the 1933 Act, 1934 Act, 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
1940 Act.
(i) The Fund shall be entitled to commence a
civil action seeking enforcement and/or for breach of this Agreement in any
state or federal court of Delaware. The Sub-Adviser shall submit to the personal
jurisdiction of any such court and shall not contend that the court is not a
proper venue for any such civil action. The parties to this Agreement authorize
and direct the court to: (1) revise and amend the provisions of Section 2 to the
extent that the court finds those provisions too broad or otherwise
unenforceable; and (2) enforce this Agreement as revised or amended.
(ii) The party substantially prevailing in a
civil action brought to enforce and/or for breach of this Agreement shall be
entitled to recover the reasonable attorneys' fees and legal expenses incurred
by that party in that litigation.
(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) If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby, and to this extent, the provisions
of this Agreement shall be deemed to be severable.
- 11 -
(e) 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.
(f) 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- ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
AW ADVISORS, LLC
By: -s- [ILLEGIBLE]
----------------------------
Title: MANAGING PARTNER
- 12 -
SCHEDULE A
TO THE SUB-ADVISORY AGREEMENT BETWEEN
ING INVESTMENTS, LLC
AND
AW ADVISORS, LLC
SERIES ANNUAL SUB-ADVISORY FEE
------ -----------------------
ING Biotechnology Fund (the "Fund") Fulcrum Fee
FULCRUM FEE:
The following schedule shows the sub-advisory fee to be paid by the Manager to
the Sub-Adviser. The sub-advisory fee is made up of two components: (i) a base
sub-advisory fee of 0.625% of the Fund's average daily net assets, and (ii) a
performance adjustment. The Fund will begin to pay the performance adjustment
starting in its thirteenth month of operations. For the first twelve months of
operations, the Fund will pay only the base advisory fee of 1.25%.
ANNUAL % POINT ANNUAL BASE
DIFFERENCE BETWEEN SUB-ADVISORY PERFORMANCE ANNUAL TOTAL
CLASS A SHARES OF THE FEE (AS A % OF ADJUSTMENT (AS A % SUB-ADVISORY FEE
FUND AND NASDAQ AVERAGE NET OF AVERAGE NET (AS A % OF AVERAGE
BIOTECHNOLOGY INDEX* ASSETS) ASSETS) NET ASSETS)
--------------------- -------------- ------------------ ------------------
5.01 or better 0.625% 0.500% 1.125%
4.01 to 5.00 0.625% 0.375% 1.000%
3.01 to 4.00 0.625% 0.250% 0.875%
2.01 to 3.00 0.625% 0.125% 0.750%
2.00 to -2.00 0.625% 0.000% 0.625%
-2.01 to -3.00 0.625% -0.125% 0.500%
-3.01 to -4.00 0.625% -0.250% 0.375%
-4.01 to -5.00 0.625% -0.375% 0.250%
-5.00 or worse 0.625% -0.500% 0.125%
---------------------
* Measured over the performance period which, beginning twelve months
after the Fund has commenced operations, will be a rolling 12 month
period ending with the most recent calendar month. Since the performance
adjustment is based on the comparative performance of Class A shares
against the Index, the controlling factor is not whether the performance
of Class A shares is up or down, but whether that performance is up or
down more than or less than that of the Index. In addition, the relative
performance of Class A shares against the Index is measured only for the
relevant performance period, and does not take into account performance
over longer or shorter periods of time.
SCHEDULE B
TO THE
SUB-ADVISORY AGREEMENT
BETWEEN
ING INVESTMENTS, LLC
AND
AW ADVISORS, LLC
SERIES APPROVED BY BOARD REAPPROVAL DATE
------ ----------------- ---------------
ING Biotechnology Fund February 26, 2002 September 1, 2003