Exhibit (d)(4)
FORM OF INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 23rd day of September, 2002 between ING Funds
Trust, a Delaware business trust (the "Trust"), and ING Investments, LLC, an
Arizona limited liability company (the "Manager").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust is authorized to issue shares of common stock in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust may offer shares of additional series in the future;
and
WHEREAS, the Trust desires to avail itself of the services of the
Manager for the provision of advisory and management services for the Trust; and
WHEREAS, the Manager is willing to render such services to the Trust.
NOW, THEREFORE, in consideration of the premises, the promises and
mutual covenants herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Manager, subject to the
direction of the Board of Trustees, for the period and on the terms set forth in
this Agreement, to provide advisory, management, and other services, as
described herein, with respect to the series of the Trust set forth on Schedule
A (individually and collectively referred to herein as "Series"), as such
schedule may be amended from time to time. The Manager accepts such appointment
and agrees to render the services herein set forth for the compensation herein
provided.
In the event the Trust establishes and designates additional series
with respect to which it desires to retain the Manager to render advisory
services hereunder, it shall notify the Manager in writing. If the Manager is
willing to render such services, it shall notify the Trust in writing, whereupon
such additional series shall become a Series hereunder.
2. Services of the Manager. The Manager represents and warrants that it
is registered as an investment adviser under the Investment Advisers Act of 1940
and will maintain such registration for so long as required by applicable law.
Subject to the general supervision of the Board of Trustees of the Trust, the
Manager shall provide the following advisory, management, and other services
with respect to the Series:
(a) Provide general, investment advice and guidance with
respect to the Series and provide advice and guidance to the Trust's Trustees,
and oversee the management of the investments of the Series and the composition
of each Series' portfolio of securities and investments, including cash, and the
purchase, retention and disposition thereof, in accordance with each Series'
investment objective or objectives and policies as stated in the Trust's current
registration statement, which management may be provided by others selected by
the Manager
and approved by the Board of Trustees as provided below or directly by the
Manager as provided in Section 3 of this Agreement;
(b) In the event that the Manager wishes to select others to
render investment management services, the Manager shall analyze, select and
recommend for consideration and approval by the Trust's Board of Trustees
investment advisory firms (however organized) to provide investment advice to
one or more of the Series, and, at the expense of the Manager, engage (which
engagement may also be by the Trust) such investment advisory firms to render
investment advice and manage the investments of such Series and the composition
of each such Series' portfolio of securities and investments, including cash,
and the purchase, retention and disposition thereof, in accordance with each
Series' investment objective or objectives and policies as stated in the Trust's
current registration statement (any such firms approved by the Board of Trustees
and engaged by the Trust or the Manager are referred to herein as
"Sub-Advisers");
(c) Periodically monitor and evaluate the performance of the
Sub-Advisers with respect to the investment objectives and policies of the
Series;
(d) Monitor the Sub-Advisers for compliance with the
investment objective or objectives, policies and restrictions of each Series,
the 1940 Act, Subchapter M of the Internal Revenue Code, and if applicable,
regulations under such provisions, and other applicable law;
(e) If appropriate, analyze and recommend for consideration by
the Trust's Board of Trustees termination of a contract with a Sub-Adviser under
which the Sub-Adviser provides investment advisory services to one or more of
the Series;
(f) Supervise Sub-Advisers with respect to the services that
such Sub-Advisers provide under respective sub-advisory agreements ("Sub-Adviser
Agreements");
(g) Render to the Board of Trustees of the Trust such periodic
and special reports as the Board may reasonably request; and
(h) Make available its officers and employees to the Board of
Trustees and officers of the Trust for consultation and discussions regarding
the administration and management of the Series and services provided to the
Trust under this Agreement.
3. Investment Management Authority. In the event the Manager wishes to
render investment management services directly to a Series, then with respect to
any such Series, the Manager, subject to the supervision of the Trust's Board of
Trustees, will provide a continuous investment program for the Series' portfolio
and determine the composition of the assets of the Series' portfolio, including
determination of the purchase, retention, or sale of the securities, cash, and
other investments contained in the portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Series' assets by determining the securities and
other investments that shall be purchased, entered into, sold, closed, offered
to the public, 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, and the Manager
is hereby
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authorized to execute and perform such services on behalf of the Series. To the
extent permitted by the investment policies of the Series, the Manager 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 such Series. The Manager will provide the services under
this Agreement in accordance with the Series' investment objective or
objectives, policies, and restrictions as stated in the Trust's Registration
Statement filed with the Securities and Exchange Commission (the "SEC"), as
amended. Furthermore:
(a) The Manager will manage the Series so that each will
qualify as a regulated investment company under Subchapter M of the Internal
Revenue Code. In managing the Series in accordance with these requirements, the
Manager shall be entitled to receive and act upon advice of counsel to the Trust
or counsel to the Manager.
(b) The Manager 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 Trust's Board of
Trustees, and the provisions of the Registration Statement of the Trust under
the Securities Act of 1933 and the 1940 Act, as supplemented or amended.
(c) On occasions when the Manager deems the purchase or sale
of a security to be in the best interest of the Series as well as any other
investment advisory clients, the Manager may, to the extent permitted by
applicable laws and regulations and any applicable procedures adopted by the
Trust's Board of Trustees, but shall not be obligated to, aggregate the
securities to be so sold or purchased with those of its other clients where such
aggregation is not inconsistent with the policies set forth in the Registration
Statement. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the Manager in
a manner that is fair and equitable in the judgment of the Manager in the
exercise of its fiduciary obligations to the Trust and to such other clients.
(d) In connection with the purchase and sale of securities of
a Series, the Manager will arrange for the transmission to the custodian for the
Series on a daily basis, of 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 a Series,
as may be reasonably necessary to enable the custodian to perform its
administrative and recordkeeping responsibilities with respect to a Series. With
respect to portfolio securities to be purchased or sold through the Depository
Trust Company, the Manager will arrange for the prompt transmission of the
confirmation of such trades to the Series' custodian.
(e) The Manager will assist the custodian or portfolio
accounting agent for the Series in determining, consistent with the procedures
and policies stated in the Registration Statement for the Trust and any
applicable procedures adopted by the Trust's Board of Trustees, the value of any
portfolio securities or other assets of the Series for which the custodian or
portfolio accounting agent seeks assistance or review from the Manager.
(f) The Manager will make available to the Trust, promptly
upon request, any of the Series' or the Manager's investment records and ledgers
as are necessary to assist the Trust
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to comply with requirements of the 1940 Act, as well as other applicable laws.
The Manager will furnish to regulatory authorities having the requisite
authority any information or reports in connection with its services which may
be requested in order to ascertain whether the operations of the Trust are being
conducted in a manner consistent with applicable laws and regulations.
(g) The Manager will regularly report to the Trust's Board of
Trustees on the investment program for the Series and the issuers and securities
represented in each Series' portfolio, and will furnish the Trust's Board of
Trustees with respect to the Series such periodic and special reports as the
Trustees may reasonably request.
(h) In connection with its responsibilities under this Section
3, the Manager is responsible for decisions to buy and sell securities and other
investments for each Series' portfolio, broker-dealer selection, and negotiation
of brokerage commission rates. The Manager'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 Trust, 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, experience and financial stability of the broker-dealer involved,
the quality of the service, the difficulty of execution, execution capabilities
and operational facilities of the firms involved, and the firm's risk in
positioning a block of securities. Accordingly, the price to the 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 Manager in the
exercise of its fiduciary obligations to the Trust, by other aspects of the
portfolio execution services offered. Subject to such policies as the Board of
Trustees may determine and consistent with Section 28(e) of the Securities
Exchange Act of 1934, as amended, the Manager 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 the 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 Manager 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 Manager's overall responsibilities with respect to
the Series and to its other clients as to which it exercises investment
discretion. To the extent consistent with these standards and in accordance with
Section 11(a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T)
thereunder, the Manager is further authorized to allocate the orders placed by
it on behalf of the Series to the Manager 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 Manager or an affiliate of the Manager. Such allocation shall be in such
amounts and proportions as the Manager shall determine consistent with the above
standards, and the Manager will report on said allocation regularly to the Board
of Trustees of the Trust indicating the broker-dealers to which such allocations
have been made and the basis therefor.
4. Conformity with Applicable Law. The Manager, in the performance of
its duties and obligations under this Agreement, shall act in conformity with
the Registration Statement of the Trust and with the instructions and directions
of the Board of Trustees of the Trust and will
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conform to, and comply with, the requirements of the 1940 Act and all other
applicable federal and state laws and regulations.
5. Exclusivity. The services of the Manager to the Trust under this
Agreement are not to be deemed exclusive, and the Manager, or any affiliate
thereof, shall be free to render similar services to other investment companies
and other clients (whether or not their investment objectives and policies are
similar to those of any of the Series) and to engage in other activities, so
long as its services hereunder are not impaired thereby.
6. Documents. The Trust has delivered properly certified or
authenticated copies of each of the following documents to the Manager and will
deliver to it all future amendments and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust
authorizing the appointment of the Manager and approving the form of this
Agreement;
(b) the Registration Statement as filed with the SEC and any
amendments thereto; and
(c) exhibits, powers of attorney, certificates and any and all
other documents relating to or filed in connection with the Registration
Statement described above.
7. Records. The Trust agrees to maintain and to preserve for the
periods prescribed under the 1940 Act any such records as are required to be
maintained by the Trust with respect to the Series by the 1940 Act. The Manager
further agrees that all records of the Series are the property of the Trust and,
to the extent held by the Manager, it will promptly surrender any of such
records upon request.
8. Expenses. During the term of this Agreement, the Manager will pay
all expenses incurred by it in connection with its activities under this
Agreement, except such expenses as are assumed by the Trust under this Agreement
and such expenses as are assumed by a Sub-Adviser under its Sub-Adviser
Agreement. The Manager further agrees to pay all fees payable to the
Sub-Advisers, executive salaries and expenses of the Trustees of the Trust who
are employees of the Manager or its affiliates, and office rent of the Trust.
The Trust shall be responsible for all of the other expenses of its operations,
including, without limitation, the management fee payable hereunder; brokerage
commissions; interest; legal fees and expenses of attorneys; fees of auditors,
transfer agents and dividend disbursing agents, custodians and shareholder
servicing agents; the expense of obtaining quotations for calculating each
Fund's net asset value; taxes, if any, and the preparation of the Series' tax
returns; cost of stock certificates and any other expenses (including clerical
expenses) of issue, sale, repurchase or redemption of shares; expenses of
registering and qualifying shares of the Series under federal and state laws and
regulations (including the salary of employees of the Manager engaged in the
registering and qualifying of shares of the Series under federal and state laws
and regulations or a pro-rata portion of the salary of employees to the extent
so engaged); salaries of personnel involved in placing orders for the execution
of the Series' portfolio transactions; expenses of disposition or offering any
of the portfolio securities held by a Series; expenses of printing and
distributing
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reports, notices and proxy materials to existing shareholders; expenses of
printing and filing reports and other documents filed with governmental
agencies; expenses in connection with shareholder and director meetings;
expenses of printing and distributing prospectuses and statements of additional
information to existing shareholders; fees and expenses of Trustees of the Trust
who are not employees of the Manager or any Sub-Adviser, or their affiliates;
trade association dues; insurance premiums; extraordinary expenses such as
litigation expenses. To the extent the Manager incurs any costs or performs any
services which are an obligation of the Trust, as set forth herein, the Trust
shall promptly reimburse the Manager for such costs and expenses. To the extent
the services for which the Trust is obligated to pay are performed by the
Manager, the Manager shall be entitled to recover from the Trust only to the
extent of its costs for such services.
9. Compensation. For the services provided by the Manager to each
Series pursuant to this Agreement, the Trust will pay to the Manager an annual
fee equal to the amount specified for such Series in Schedule A hereto, payable
monthly in arrears. Payment of the fees shall be in addition to any amount paid
to the Manager for the salary of its employees for performing services which are
an obligation of the Fund as provided in Section 8. The fee will be
appropriately pro-rated to reflect any portion of a calendar month that this
Agreement is not in effect between us.
10. Liability of the Manager. The Manager may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be required by the 1940 Act or the rules thereunder, neither the Manager nor its
stockholders, officers, trustees, employees, or agents shall be subject to, and
the Trust will indemnify such persons from and against, any liability for, or
any damages, expenses, or losses incurred 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 Manager's duties, or by reason of reckless
disregard of the Manager's obligations and duties under this Agreement. Except
as may otherwise be required by the 1940 Act or the rules thereunder, neither
the Manager nor its stockholders, officers, trustees, employees, or agents shall
be subject to, and the Trust will indemnify such persons from and against, any
liability for, or any damages, expenses, or losses incurred in connection with,
any act or omission by a Sub-Adviser or any of the Sub-Adviser's stockholders or
partners, officers, trustees, employees, or agents connected with or arising out
of any services rendered under a Sub-Adviser Agreement, except by reason of
willful misfeasance, bad faith, or gross negligence in the performance of the
Manager's duties under this Agreement, or by reason of reckless disregard of the
Manager's obligations and duties under this Agreement. No trustee, officer,
employee or agent of the Trust shall be subject to any personal liability
whatsoever, in his or her official capacity, to any person, including the
Sub-Adviser, other than to the Trust or its shareholders, in connection with
Trust property or the affairs of the Trust, save only that arising from his or
her bad faith, willful misfeasance, gross negligence or reckless disregard of
his or her duty to such person; and all such persons shall look solely to the
Trust property for satisfaction of claims of any nature against a trustee,
officer, employee or agent of the Trust arising in connection with the affairs
of the Trust. Moreover, the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to a Series shall be
enforceable against the assets and property of that Series only, and not against
the assets or property of any other series of the Trust.
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11. Continuation and Termination. This Agreement shall become effective
on the date first written above, subject to the condition that the Trust'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, and the
shareholders of each Series, shall have approved this Agreement. Unless
terminated as provided herein, the Agreement shall continue in full force and
effect with respect to each Series until the Reapproval Date set forth for such
Series in Schedule A to this Agreement, and shall continue from year to year
thereafter with respect to each Series so long as such continuance is
specifically approved at least annually (i) by the vote of a majority of the
Board of Trustees of the Trust, or (ii) by vote of a majority of the outstanding
voting shares of the Series (as defined in the 1940 Act), and provided
continuance is also approved by the vote of a majority of the Board of Trustees
of the Trust who are not parties to this Agreement or "interested persons" (as
defined in the ▇▇▇▇ ▇▇▇) of the Trust or the Manager, cast in person at a
meeting called for the purpose of voting on such approval. This Agreement may
not be amended in any material respect without a majority vote of the
outstanding voting shares (as defined in the 1940 Act).
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
(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 Trust,
unless such approval shall be required by any other applicable law or otherwise.
This Agreement may be terminated by the Trust at any time, in its entirety or
with respect to a Series, without the payment of any penalty, by vote of a
majority of the Board of Trustees of the Trust or by a vote of a majority of the
outstanding voting shares of the Trust, or with respect to a Series, by vote of
a majority of the outstanding voting shares of such Series, on sixty (60) days'
written notice to the Manager, or by the Manager at any time, without the
payment of any penalty, on sixty (60) days' written notice to the Trust. This
Agreement will automatically and immediately terminate in the event of its
"assignment" as described in the 1940 Act.
12. Use of Name. It is understood that the name "ING Investments, LLC"
or any derivative thereof (including the name "ING") or logo associated with
that name is the valuable property of the Manager and its affiliates, and that
the Trust or the Series have the right to use such name (or derivative or logo)
only so long as this Agreement shall continue with respect to the Trust or
Series. Upon termination of this Agreement, the Trust (or Series) shall
forthwith cease to use such name (or derivative or logo) and, in the case of the
Trust, shall promptly amend its Articles of Incorporation to change its name (if
such name is included therein).
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
14. Applicable Law.
(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 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
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(b) 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.
(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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
ING FUNDS TRUST
By: ______________________________
▇▇▇▇▇▇ ▇. Naka
Senior Vice President
ING INVESTMENTS, LLC
By: ______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
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SCHEDULE A
WITH RESPECT TO THE
INVESTMENT MANAGEMENT AGREEMENT
BETWEEN
ING FUNDS TRUST
AND
ING INVESTMENTS, LLC
DATED: SEPTEMBER 23, 2002
ANNUAL INVESTMENT LAST CONTINUED/
SERIES MANAGEMENT FEE APPROVED BY BOARD REAPPROVAL DATE
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(as a percentage of average daily net assets)
ING GNMA Income Fund 0.60% of first $150 million of assets August 20, 2002 September 1, 2003
0.50% of assets in excess of $150 million up to
$400 million
0.45% of assets in excess of $400 million up to
$800 million
0.40% of assets in excess of $800 million
ING Lexington Money 0.50% of assets up to $500 million August 20, 2002 September 1, 2003
Market Trust 0.45% of assets in excess of $500 million
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