Exhibit 99.B-(d)(1)
AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS is an AMENDMENT AND RESTATEMENT of an AGREEMENT originally made October 1,
1999, and restated May 9, 2001. This amended and restated agreement is made this
2nd day of August, 2005 by and between ING Variable Insurance Trust (formerly
Pilgrim Variable Insurance Trust), a Delaware business trust (the "Trust"), and
ING Investments, LLC (formerly ING Pilgrim Investments, LLC), an Arizona limited
liability company (the "Investment Manager").
WHEREAS, the Trust is registered as an open-end, investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the rules
and regulations promulgated thereunder; and
WHEREAS, the Investment Manager is registered and will remain registered
during the term of this Agreement as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Investment Advisers Act"), and engages in
the business of acting as an investment adviser; and
WHEREAS, the Trust is authorized to issue shares of beneficial interest 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's Board of Trustees authorized this agreement to be
amended and restated at a meeting held March 30, 2005, and the other party to
this agreement ING Investments, LLC merged with and is the successor to the
original party to this agreement ING Mutual Funds Management LLC; and
WHEREAS, the Trust desires to avail itself of the services of the
Investment Manager for the provision of advisory and management services for the
Trust; and
WHEREAS, the Investment Manager is willing to render such services to the
Trust.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. APPOINTMENT. The Trust hereby appoints the Investment 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 each series of the Trust set forth in
SCHEDULE A hereto (individually and collectively referred to herein as
"Series"), as such schedule may be amended from time to time. The Investment
Manager accepts such appointment and agrees to render the services herein set
forth for the compensation herein provided.
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In the event the Trust establishes and designates additional series with
respect to which it desires to retain the Investment Manager to render advisory
services hereunder, it shall notify the Investment Manager in writing. If the
Investment Manager is willing to render such services, it shall notify the Trust
in writing, whereupon such additional series shall become a Series hereunder.
The Investment Manager shall act as investment adviser for the Series of
the Trust and shall, in such capacity, supervise the investment and reinvestment
of the cash, securities or other properties comprising each Series assets,
subject at all times to the policies and control of the Trust's Board of
Trustees. The Investment Manager shall give each Series the benefit of its best
judgment, efforts and facilities in rendering its services as investment
adviser. The Investment Manager shall, for all purposes herein, be deemed an
independent contractor and shall have, unless otherwise expressly provided or
authorized, no authority to act for or represent the Trust, on behalf of the
Series, in any way or otherwise be deemed an agent of the Trust.
With respect to those Series that have obtained shareholder approval,
subject to the approval of the Board of Trustees of the Trust, the Investment
Manager is authorized to enter into sub-advisory agreements with other
registered investment advisers to serve as investment sub-advisors, whether or
not affiliated with the Investment Manager (each a "Sub-Adviser"). The
Investment Manager will continue to have responsibility for all services
furnished pursuant to any sub-advisory agreement (each a "Sub-Advisory
Agreement"). The Trust and the Investment Manager understand and agree that the
Investment Manager may manage each Series in a "manager-of-managers" style with
either a single or multiple sub-advisers, which contemplates that the Investment
Manager will, among other things and pursuant to an Order issued by the
Securities and Exchange Commission (the "SEC"): (i) continually evaluate the
performance of the Sub-Advisers to the Trust; and (ii) periodically make
recommendations to the Trust's Board of Trustees regarding the results of its
evaluation and monitoring functions. The Trust recognizes that, subject to the
approval of the Board of Trustees of the Trust, a sub-adviser's services may be
terminated or modified and that the Investment Manager may appoint a new
Sub-Adviser for a Series, subject to an applicable SEC Order.
2. DUTIES OF INVESTMENT MANAGER. In carrying out its obligation under
paragraph 1 hereof, the Investment Manager shall:
(a) supervise and manage all aspects of the Series operations;
(b) provide the Series or obtain for each, and thereafter supervise,
such executive, administrative, clerical and shareholder servicing services
as are deemed advisable by the Trust's Board of Trustees;
(c) arrange, but not pay for, the periodic updating of prospectuses
and supplements thereto, proxy material, tax returns, reports to the Series
shareholders and reports to and filings with the SEC and state Blue Sky
authorities;
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(d) provide the Series with, or obtain for each, adequate office
space and all necessary office equipment and services, including telephone
service, heat, utilities, stationery supplies and similar items for the
Series principal office;
(e) provide the Board of Trustees of the Trust on a regular basis
with financial reports and analyses on the Series operations and the
operations of comparable investment companies;
(f) obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or the
Series, and whether concerning the individual issuers whose securities are
included in the Series or the activities in which they engage, or with
respect to securities which the Investment Manager considers desirable for
inclusion in the Series;
(g) determine what issuers and securities shall be represented in the
Series respective portfolios and regularly report them to the Board of
Trustees of the Trust;
(h) formulate and implement continuing programs for the purchases and
sales of the securities of such issuers and regularly report thereon to the
Board of Trustees of the Trust; and
(i) take, on behalf of the Series, all actions which appear necessary
to carry into effect such purchase and sale programs and supervisory
functions as aforesaid, including the placing of orders for the purchase
and sale of portfolio securities.
3. BROKER-DEALER RELATIONSHIPS. The Investment Manager is responsible for
decisions to buy and sell securities for the Series, broker-dealer selection,
and negotiation of brokerage commission rates. The Investment Manager may select
any affiliated person of the Trust or the Investment Manager to the extent
permitted pursuant to the Trust's procedures for securities transactions with
affiliated brokers pursuant to Section 17(e)(2) and Rule 17e-1 under the
1940 Act.
The Investment Manager's primary consideration in effecting a security
transaction will be execution at a price that is reasonable and fair compared to
the commission, fee or other remuneration received or to be received by other
brokers in connection with comparable transactions, including similar securities
being purchased or sold on a securities exchange during a comparable period of
time. In selecting a broker-dealer to execute each particular transaction, the
Investment Manager will take the following into consideration: the best net
price available; the reliability, integrity and financial condition of the
broker-dealer; the size of and difficulty in executing the order; and the value
of the expected contribution of the broker-dealer to the investment performance
of the Series on a continuing basis. 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 by other aspects of the portfolio
execution services offered.
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Subject to such policies and procedures as the Board of Trustees may
determine, the Investment 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 a Series to pay a broker or dealer that provides
brokerage and research services to the Investment Manager for the Series use an
amount of commission for effecting a portfolio investment transaction in excess
of the amount of commission another broker or dealer would have charged for
effecting that transaction, if the Investment 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 or dealer, viewed in
terms of either that particular transaction or the Investment Manager's overall
responsibilities with respect to the Series. The Investment Manager is further
authorized to allocate the orders placed by it on behalf of a Series to such
brokers and dealers who also provide research or statistical material, or other
services to the Series or the Investment Manager for the Series use. Such
allocation shall be in such amounts and proportions as the Investment Manager
shall determine and the Investment Manager will report on said allocations
regularly to the Board of Trustees of the Trust indicating the brokers to whom
such allocations have been made and the basis therefor.
4. CONTROL BY BOARD OF TRUSTEES. Any investment program undertaken by the
Investment Manager pursuant to this Agreement, as well as any other activities
undertaken by the Investment Manager on behalf of the Series pursuant thereto,
shall at all times be subject to any directives of the Board of Trustees of the
Trust.
5. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its obligations
under this Agreement, the Investment Manager shall at all times conform to: (a)
all applicable provisions of the 1940 Act and the Investment Advisers Act and
any rules and regulations adopted thereunder as amended; and (b) the provisions
of the Registration Statement of the Trust under the Securities Act of 1933, as
amended, and the 1940 Act; and (c) the provisions of the Trust Instrument of the
Trust, as amended; and (d) the provisions of the By- laws of the Trust, as
amended; and (e) any other applicable provisions of state and federal law.
6. EXPENSES. The expenses connected with the Series shall be allocable
between the Series and the Investment Manager as follows:
(a) The Investment Manager shall furnish, at its expense and without
cost to the Series, the services of a President, Secretary and one or more
Vice Presidents of the Trust, to the extent that such additional officers
may be required by the Trust for the proper conduct of its affairs;
(b) The Investment Manager shall further maintain, at its expense and
without cost to the Series, a trading function in order to carry out its
obligations under subparagraph (h) of paragraph 2 hereof to place orders
for the purchase and sale of portfolio securities for the Series;
(c) Nothing in subparagraph (a) hereof shall be construed to require
the Investment Manager to bear: (i) any of the costs (including applicable
office space, facilities and equipment) of the services of a principal
financial officer of the Trust whose
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normal duties consist of maintaining the financial accounts and books and
records of the Series; including the review of calculations of net asset
value and preparing tax returns; or (ii) any of the costs (including
applicable office space, facilities and equipment) of the services of any
of the personnel operating under the direction of such principal financial
officer. Notwithstanding the obligation of the Series to bear the expense
of the functions referred to in clauses (i) and (ii) of this subparagraph
(c), the Investment Manager may pay the salaries, including any applicable
employment or payroll taxes and other salary costs, of the principal
financial officer and other personnel carrying out such functions and the
Series shall reimburse the Investment Manager therefor upon proper
accounting.
(d) All of the ordinary business expenses incurred in the operations
of the Series and the offering of shares shall be borne by the Series
unless specifically provided otherwise in this paragraph 6. These expenses
include, but are not limited to, brokerage commissions, legal, auditing,
taxes or governmental fees, networking servicing costs, fund accounting
servicing costs, fulfillment servicing costs, the cost of preparing share
certificates, custodian, depository, transfer and shareholder service agent
costs, expenses of issue, sale, redemption and repurchase of shares,
expenses of registering and qualifying shares for sale, insurance premiums
on property or personnel (including officers and trustees if available) of
the Series which inure to each Series benefit, expenses relating to trustee
and shareholder meetings, the cost of preparing and distributing reports
and notices to shareholders, the fees and other expenses incurred by the
Trust in connection with membership in investment company organizations and
the cost of printing copies of prospectuses and statements of additional
information distributed to shareholders.
7. DELEGATION OF RESPONSIBILITIES. The Investment Manager may delegate the
performance of certain investment advisory services, as described hereunder, to
a sub-adviser.
8. COMPENSATION. For the services provided and the expenses assumed pursuant
to this Agreement, each Series will pay the Investment Manager and the
Investment Manager will accept as full compensation therefor a fee computed
daily and paid monthly in arrears at the annual rate set forth on SCHEDULE A,
based on each Series average daily net assets, computed in the manner set forth
in the Registration Statement of the Trust. If the fees payable to the
Investment Manager begin to accrue before the end of any month, or if this
Agreement terminates before the end of any month, then such fees for such month
shall be prorated according to the proportion which the partial period bears to
the full month in which such effectiveness or termination occurs. The Investment
Manager may from time to time and for such periods as it deems appropriate
voluntarily reduce its compensation hereunder (and/or voluntarily assume
expenses) for a Series.
9. NON-EXCLUSIVITY. The services of the Investment Manager to the Series are
not to be deemed to be exclusive, and the Investment Manager shall be free to
render investment advisory and corporate administrative or other services to
others (including other investment companies) and to engage in other activities.
It is understood and agreed that officers or members of the Investment Manager
may serve as officers or trustees of the Trust, and that officers or trustees of
the Trust may serve as officers or members of the Investment Manager to the
extent permitted by
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law; and that the officers and members of the Investment Manager are not
prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers or partners
of any other firm or corporation, including other investment companies.
10. TERM AND APPROVAL. This Agreement shall become effective on the date first
indicated 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 0000 Xxx) of the Investment Manager, and the shareholders
of each Series, shall have approved this Agreement. Unless terminated as
provided herein, this Agreement shall remain in force and effect until NOVEMBER
30, 2006 and thereafter from year to year with respect to each Series, provided
that such continuance is specifically approved at least annually: (a) (i) by the
Trust's Board of Trustees or (ii) by the vote of a majority of the Series
outstanding voting securities (as defined in Section 2(a)(42) of the 0000 Xxx);
and (b) by the affirmative vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of a party to this Agreement
(other than as Trust trustees), by votes cast in person at a meeting
specifically called for such purpose.
11. TERMINATION. This Agreement may be terminated at any time as it pertains to
a Series, without the payment of any penalty, by vote of the Trust's Board of
Trustees or by vote of a majority of the Series outstanding voting securities,
or by the Investment Manager, on sixty (60) days' written notice to the other
party. The notice provided for herein may be waived by either party. This
Agreement shall automatically terminate as it pertain to all Series in the event
of its assignment, the term "assignment" for the purpose having the meaning
defined in Section 2(a)(4) of the 1940 Act.
12. LIABILITY OF INVESTMENT MANAGER AND INDEMNIFICATION. In the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Investment Manager or any of
its officers, trustees or employees, the Investment Manager shall not be subject
to liability to the Trust or to the Series or to any shareholder of the Series
for any act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding or
sale of any security. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Investment Manager or any officer, director or employee of the Investment
Manager, the Trust hereby agrees to indemnify and hold the Investment Manager
harmless from and against all claims, actions, suits, and proceedings at law or
in equity whether brought or asserted by a private party or a governmental
agency, instrumentality or entity of any kind, relating to the sale, purchase,
pledge of, advertisement of, or solicitation of sales or purchases of any
security (whether of a Series or otherwise) by the Trust, its officers,
directors, employees or agents in alleged violation of applicable federal, state
or foreign laws, rules or regulations.
13. LIMIT OF LIABILITY. The terms the "ING Variable Insurance Trust" and
"Trustees" (of the Trust) refer, respectively to the trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the Trust's organizational documentation, to which reference is
hereby made. The obligations of the "ING Variable Insurance Trust" entered into
in the name or on behalf thereof by any of the Trustees, representatives or
agents are made not
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individually, but in such capacities and are not binding upon any of the
Trustees, shareholders or representatives of the Trust personally, but bind only
the assets of the Series, and all persons dealing with the Series or other
series of the Trust must look solely to the assets of the Series for the
enforcement of any claims against the Trust.
14. LICENSE AGREEMENT. The Trust shall have the non-exclusive right to use the
name "ING" to designate itself and any current or future series of shares only
so long as ING Investments, LLC serves as investment manager or adviser to the
Trust with respect to such series of shares. In the event that the Investment
Manager ceases to act as the investment manager to the Series, the Trust shall
cease using the name "ING" upon the Investment Manager's written request.
15. AMENDMENT OF THIS AGREEMENT. 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. Further, any material amendment, as determined by the
parties hereto with the assistance of legal counsel, shall not be effective
until approved: (a) (i) by the Trust's Board of Trustees and (ii) by the vote of
a majority of the Series, outstanding voting securities (as defined in
Section 2(a)(42) of the 0000 Xxx); and (b) by the affirmative vote of a majority
of the Trustees who are not parties to this Agreement or interested persons of a
party to this Agreement (other than as Trust trustees), by votes cast in person
at a meeting specifically called for such purpose.
16. NOTICES. Any notices under this Agreement shall be in writing, addressed
and delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt of such notice. Until further notice
to the other party, it is agreed that the address of the Trust and that of the
Investment Manager shall be 0000 X. Xxxxxxxxxx Xxxxx Xx., Xxxxxxxxxx, XX 00000.
17. QUESTIONS OF INTERPRETATION. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the Act and to interpretations thereof, if any, by the United
States Courts or in the absence of any controlling decision of any such court,
by rules, regulations or orders of the SEC issued pursuant to said Act. In
addition, where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is released by rules, regulation or order of the
SEC, such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall constitute an original and both of which, collectively, shall constitute
one agreement.
19. MISCELLANEOUS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. 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. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the laws of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
above written.
ING VARIABLE INSURANCE TRUST ING INVESTMENTS, LLC
By: /s/ Xxxxxx X. Naka By: /s/ Xxxx Xxxxx
--------------------- --------------
Name: Xxxxxx X. Naka Name: Xxxx Xxxxx
Title: Senior Vice President Title: Senior Vice President
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SCHEDULE A
WITH RESPECT TO THE
AMENDED AND RESTATED MANAGEMENT AGREEMENT
BETWEEN
ING VARIABLE INSURANCE TRUST
AND
ING INVESTMENTS, LLC
NAME OF SERIES ANNUAL INVESTMENT MANAGEMENT FEE
-------------- ---------------------------------------------
(AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
ING GET U.S. Core Portfolio - Series 1 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 2 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 3 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 4 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 5 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 6 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 7 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 8 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 9 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 10 0.25% Offering Period
0.60% Guarantee Period
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NAME OF SERIES ANNUAL INVESTMENT MANAGEMENT FEE
-------------- ---------------------------------------------
(AS A PERCENTAGE OF AVERAGE DAILY NET ASSETS)
ING GET U.S. Core Portfolio - Series 11 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Core Portfolio - Series 12 0.25% Offering Period
0.60% Guarantee Period
ING GET U.S. Opportunity Portfolio - Series 1 0.25% Offering Period
0.75% Guarantee Period
ING GET U.S. Opportunity Portfolio - Series 2 0.25% Offering Period
0.75% Guarantee Period
ING VP Global Equity Dividend Portfolio 1.00%
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