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EXHIBIT 99.E
FORM OF
DISTRIBUTION AGREEMENT
Agreement made as of _________, 2000, between ING Variable Insurance Trust,
a Delaware business trust (the "Trust"), on behalf of each of its investment
company portfolios listed in Schedule A attached, which may be amended from time
to time (each a "Fund" and collectively the "Funds") and ING Funds Distributor,
Inc., (the "Distributor").
WHEREAS, the Trust is an open-end management investment company, organized
as a Delaware business trust and registered with the Securities and Exchange
Commission (the "Commission") under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other, with respect to the continuous offering of the Fund's shares (the
"Shares") from and after the date hereof in order to promote the growth of the
Funds and facilitate the distribution of their Shares; and
WHEREAS, it is contemplated that the Trust on behalf of the Funds will
adopt a plan of distribution pursuant to Rule 12b-1 under the 1940 Act (the
"Rule 12b-1 Plan") authorizing the payment by the Funds to the Distributor with
respect to the distribution of their Shares and the maintenance of shareholder
accounts.
NOW THEREFORE, in consideration of the mutual premises and covenants herein
set forth, the parties agree as follows:
1. Services as Distributor.
1.1 Distributor (i) will act as agent for the distribution of the
Shares covered by the registration statement of the Trust then in effect under
the Securities Act of 1933, as amended (the "Securities Act") and (ii) will
perform such additional services as are provided in this Section 1
(collectively, the "Services"). As used in this Agreement, the term
"registration statement" shall mean Parts A (the prospectus), B (the statement
of additional information) and C of each registration statement that is filed on
Form N-1A, or any successor thereto, with the Commission, together with any
amendments thereto. The term "Prospectus" for purposes of this Agreement shall
mean each form of prospectus and statement of additional information used by the
Funds for delivery to shareholders and prospective shareholders after the
effective dates of the above-referenced registration statements, together with
any amendments and supplements thereto.
1.2 Distributor agrees to use appropriate efforts to solicit orders for
the sale of the Shares and will undertake such advertising and promotion as it
believes reasonable in
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connection with such solicitation. The Trust understands that Distributor may in
the future be the distributor of the shares of several investment companies or
series (together, "Investment Companies") including Investment Companies having
investment objectives similar to those of the Funds. The Trust further
understands that investors and potential investors in the Funds may invest in
shares of such other Investment Companies. The Trust agrees that Distributor's
duties to such Investment Companies shall not be deemed in conflict with its
duties to the Trust under this paragraph 1.2.
To the extent not compensated by the Trust's Rule 12b-1 Plan, the
Distributor shall, at its own expense, finance appropriate activities which it
deems reasonable, which are primarily intended to result in the sale of the
Shares, including, but not limited to, advertising, compensation of
broker-dealers and sales personnel, the printing and mailing of prospectuses to
other than current Shareholders, and the printing and mailing of sales
literature.
1.3 In its capacity as distributor of the Shares, all activities of
Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the 1940
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), all rules
and regulations promulgated by the Commission under the 1940 Act and 1934 Act,
thereunder and all rules and regulations adopted by any securities association.
1.4 Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Funds of
the Trust.
1.5 Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent and custodian for the Funds.
1.6 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Trust's officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.7 Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification of
the Shares for sale in such states as Distributor may designate.
1.9 The Trust shall furnish from time to time, for use in connection
with the sale of the Shares, such information with respect to the Funds and the
Shares as Distributor may reasonably request; and the Trust warrants that the
statements contained in any such information shall fairly show or represent what
they purport to show or represent. The Trust shall also furnish Distributor upon
request with: (a) unaudited semi-annual statements of the Funds' books
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and accounts prepared by the Trust, (b) a monthly itemized list of the
securities in the Funds, (c) monthly balance sheets as soon as practicable after
the end of each month, and (d) from time to time such additional information
regarding the financial condition of the Funds as Distributor may reasonably
request.
1.10 The Trust represents to Distributor that, with respect to the
Shares, the registration statement, and amendments thereto, filed by the Trust
with the Commission under the Securities Act have been carefully prepared in
conformity with requirements of said Act and rules and regulations of the
Commission thereunder. The registration statement and amendments thereto,
contain all statements required to be stated therein in conformity with said Act
and the rules and regulations of said Commission and all statements of fact
contained in any such registration statement are true and correct. Furthermore,
the registration statement does not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading to a purchaser of the Shares. The
Trust may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any Prospectus as, in the light of future developments, may, in
the opinion of the Trust's counsel, be necessary or advisable. If the Trust
shall not propose such amendment or amendments and/or supplement or supplements
within fifteen days after receipt by the Trust of a written request from
Distributor to do so, Distributor may, at its option, terminate this Agreement.
The Trust shall not file any amendment to any registration statement or
supplement to any Prospectus without giving Distributor reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the Trust's right to file at any time such amendments to
any registration statement and/or supplements to any Prospectus, of whatever
character, as the Trust may deem advisable, such right being in all respects
absolute and unconditional.
1.11 The Trust authorizes Distributor and dealers to use any Prospectus
in the form furnished from time to time in connection with the sale of the
Shares. The Trust agrees to indemnify, defend and hold Distributor, its several
partners and employees, and any person who controls Distributor within the
meaning of Section 15 of the Securities Act free and harmless from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which Distributor, its partners and
employees, or any such controlling person, may incur under the Securities Act or
under common law or otherwise, arising out of or based upon any untrue
statement, or alleged untrue statement, of a material fact contained in any
registration statement or any Prospectus or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
either any registration statement or any Prospectus or necessary to make the
statements in either thereof not misleading; provided, however, that the Trust's
agreement to indemnify Distributor, its partners or employees, and any such
controlling person shall not be deemed to cover any claims, demands, liabilities
or expenses arising out of any statements or representations as are contained in
any Prospectus and in such financial and other statements as are furnished in
writing to the Trust by Distributor and used in the answers to the registration
statement or in the corresponding statements made in the Prospectus, or arising
out of or based upon any omission or alleged omission to state a material
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fact in connection with the giving of such information required to be stated in
such answers or necessary to make the answers not misleading; and further
provided that the Trust's agreement to indemnify Distributor and the Trust's
representations and warranties hereinbefore set forth in paragraph 1.10 shall
not be deemed to cover any liability to the Trust or its Shareholders to which
Distributor would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties under this Agreement.
The Trust will be entitled to assume the defense of any suit brought to
enforce any such claim, demand or liability, but, in such case, such defense
shall be conducted by counsel of good standing chosen by the Trust and approved
by Distributor, which approval shall not be unreasonably withheld. In the event
the Trust elects to assume the defense of any such suit and retain counsel of
good standing approved by Distributor, the defendant or defendants in such suit
shall bear the fees and expenses of any additional counsel retained by any of
them; but in case the Trust does not elect to assume the defense of any such
suit, or in case Distributor reasonably does not approve of counsel chosen by
the Trust, the Trust will reimburse Distributor, its partners and employees, or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by Distributor or them. The
Trust's indemnification agreement contained in this paragraph 1.11 and the
Trust's representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of Distributor, its partners and employees, or any controlling person,
and shall survive the delivery of any Shares.
This Agreement of indemnity will inure exclusively to Distributor's
benefit, to the benefit of its several partners and employees, and their
respective estates, and to the benefit of the controlling persons and their
successors. The Trust agrees promptly to notify Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
Trustees in connection with the issue and sale of any Shares.
1.12 Distributor agrees to indemnify, defend and hold the Trust, its
several officers and Trustees and any person who controls the Trust within the
meaning of Section 15 of the Securities Act free and harmless from and against
any and all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands, or liabilities and any counsel
fees incurred in connection therewith) which the Trust, its officers or Trustees
or any such controlling person, may incur under the Securities Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust, its officers or Trustees or such controlling person
resulting from such claims or demands, shall arise out of or be based upon any
untrue, or alleged untrue, statement of a material fact contained in information
furnished in writing by Distributor to the Trust and used in the answers to any
of the items of the registration statement or in the corresponding statements
made in the prospectus, or shall arise out of or be based upon any omission, or
alleged omission, to state a material fact in connection with such information
furnished in writing by Distributor to the Trust required to be stated in such
answers or necessary to make such information not misleading. Distributor shall
have the right of first control of the defense of any action brought against the
Trust, its officers or Trustees, or any such controlling person, with counsel of
its own choosing, satisfactory to the
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Trust, if such action is based solely upon such alleged misstatement or omission
on Distributor's part, and in any other event the Trust, its officers or
Trustees or such controlling person shall each have the right to participate in
the defense or preparation of the defense of any such action.
1.13 No Shares shall be offered by either Distributor or the Trust under
any of the provisions of this Agreement and no orders for the purchase or sale
of Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current Prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however, that
nothing contained in this paragraph 1.13 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any Shareholder in accordance with the provisions of the Trust's Prospectus,
Trust Instrument or Bylaws.
1.14 The Trust agrees to advise Distributor as soon as reasonably practical
by a notice in writing delivered to Distributor or its counsel:
(a) of any request by the Commission for amendments to the
registration statement or Prospectus then in effect or for
additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or
Prospectus then in effect or the initiation by service of process
on the Trust of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of
a material fact made in the registration statement or Prospectus
then in effect or which requires the making of a change in such
registration statement or Prospectus in order to make the
statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment to
any registration statement or Prospectus which may from time to
time be filed with the Commission.
For purposes of this section, informal requests by or acts of the Staff
of the Commission shall not be deemed actions of or requests by the Commission.
1.15 Distributor agrees on behalf of itself and its partners and employees
to treat confidentially and as proprietary information of the Trust all records
and other information relative to the Trust and its prior, present or potential
Shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except, after
prior notification to and approval in writing by the Trust, which approval
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shall not be unreasonably withheld and may not be withheld where Distributor may
be exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Trust.
1.16 This Agreement shall be governed by the laws of the State of New
York.
2. Fee.
Distributor shall receive from the Funds identified in Schedule A
hereto (the "Distribution Plan Funds") all amounts received as sales charges as
described in the Funds' most current Prospectus. Out of such sales charges, the
Distributor may allow such concessions or reallowances to dealers as it may from
time to time determine. The distribution fee shall be accrued daily and shall be
paid on the first business day of each month, or at such time(s) as the
Distributor shall reasonably request.
3. Sale and Payment.
Shares of a Fund may be subject to a sales load and may be subject to
the imposition of a distribution fee pursuant to the Rule 12b-1 Distribution
Plan. To the extent that Shares of a Fund are sold at an offering price which
includes a sales load or at net asset value subject to a contingent deferred
sales load with respect to certain redemptions (either within a single class of
Shares or pursuant to two or more classes of Shares), such Shares shall
hereinafter be referred to collectively as "Load Shares". Under this Agreement,
the following provisions shall apply with respect to the sale of, and payment
for, Load Shares.
3.1 Distributor shall have the right to purchase Load Shares at their
net asset value and to sell such Load Shares to the public against orders
therefor at the applicable public offering price, as defined in Section 4
hereof. Distributor shall also have the right to sell Load Shares to dealers
against orders therefor at the public offering price less a concession
determined by Distributor, which concession shall not exceed the amount of the
sales charge or underwriting discount, if any, referred to in Section 4 below.
3.2 Prior to the time of delivery of any Load Shares by a Load Fund to,
or on the order of, Distributor, Distributor shall pay or cause to be paid to
the Load Fund or to its order an amount in Boston or New York clearing house
funds equal to the applicable net asset value of such Shares. Distributor may
retain so much of any sales charge or underwriting discount as is not allowed by
Distributor as a concession to dealers.
4. Public Offering Price.
The public offering price of a Load Share shall be the net asset value
of such Load Share, plus any applicable sales charge, all as set forth in the
current Prospectus of the Load Fund. The net asset value of Shares shall be
determined in accordance with the provisions of the Trust Instrument and Bylaws
of the Trust and the then-current Prospectus of the Load Fund.
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5. Issuance of Shares.
The Trust reserves the right to issue, transfer or sell Load Shares at
net asset value (a) in connection with the merger or consolidation of the Trust
or the Load Fund(s) with any other investment company or the acquisition by the
Trust or the Load Fund(s) of all or substantially all of the assets or of the
outstanding Shares of any other investment company; (b) in connection with a pro
rata distribution directly to the holders of Shares in the nature of a stock
dividend or split; (c) upon the exercise of subscription rights granted to the
holders of Shares on a pro rata basis; (d) in connection with the issuance of
Load Shares pursuant to any exchange and reinvestment privileges described in
any then-current Prospectus of the Load Fund; and (e) otherwise in accordance
with any then-current Prospectus of the Load Fund.
6. Term, Duration and Termination.
The initial term of this Agreement (the "Initial Term") shall be for a
period of one year commencing on the date this Agreement is executed by both
parties. Thereafter, if not terminated, this Agreement shall continue with
respect to a particular Fund automatically for successive one-year terms,
provided that such continuance is specifically approved at least annually by (a)
by the vote of a majority of those members of the Trust's Board of Trustees who
are not parties to this Agreement or interested persons of any such party, cast
in person at a meeting for the purpose of voting on such approval and (b) by the
vote of the Trust's Board of Trustees or the vote of a majority of the
outstanding voting securities of such Fund. This Agreement is terminable without
penalty, on not less than sixty days' prior written notice, by the Trust's Board
of Trustees, by vote of a majority of the outstanding voting securities of the
Trust or by the Distributor. This Agreement will also terminate automatically in
the event of its assignment. (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested persons" and "assignment" shall
have the same meanings as ascribed to such terms in the 1940 Act.) In the event
this Agreement is terminated by the Trust, the Distributor shall be entitled to
be paid any applicable contingent deferred sales charges (as contemplated by
Section 2 of this Agreement) on the redemption of shares sold prior to the
effective date of such termination.
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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
written above.
ING VARIABLE INSURANCE TRUST ING FUNDS DISTRIBUTOR, INC.
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
Date:_____________________________ Date:_____________________________
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SCHEDULE A
Name of Fund Date of Approval
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ING Large Cap Growth Fund October 1, 1999
ING Growth & Income Fund October 1, 1999
ING International Equity Fund October 1, 1999
ING Global Brand Names Fund October 1, 1999
ING Income Allocation Fund October 1, 1999
ING Balanced Allocation Fund October 1, 1999
ING Growth Allocation Fund October 1, 1999
ING Aggressive Growth Allocation Fund October 1, 1999
A-1
