FIRST TRUST VARIABLE INSURANCE TRUST
DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement") is made as of this ___
day of _______, 2012, by and between First Trust Variable Insurance
Trust, a Massachusetts business trust (the "Trust"), on behalf of each
series (each a "fund" and, collectively, the "funds") of the Trust listed
in Appendix A attached hereto, as may be amended from time to time and
First Trust Portfolios L.P., an Illinois limited partnership (the
"Distributor").
SECTION 1. GENERAL DUTIES AS DISTRIBUTOR OF FUND SHARES.
(a) Distributor shall act as principal distributor for shares of
beneficial interest ("Shares") of the funds .. Each fund may be
authorized to issue multiple series. Distributor has the right to
purchase, as agent, from each fund, interests of each series authorized
and issued by a fund. Distributor agrees, as agent for each fund, to
accept for redemption, the interests of each series authorized and issued
by the fund; whenever the officers of the Company deem it advisable for
the protection of interest holders, they may suspend or cancel such
authority with respect to one or more of the funds. In the performance of
these duties, Distributor shall be guided by the requirements of this
Agreement, the applicable provisions of the Company's Limited Liability
Company Agreement and applicable federal and state law, all as amended
and/or supplemented from time to time, and each fund's Prospectus and
Statement of Additional Information, then in effect under the Company's
current Registration Statement filed with the U.S. Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933,
as amended (the "1933 Act"), and the Investment Company Act of 1940, as
amended (the "1940 Act").
(b) Solicitation of Orders. Distributor agrees use its best efforts
(but only in states in which it may lawfully do so) to obtain orders for
Shares of the funds duly authorized for issue by the Trust and registered
under the 1933 Act, from life insurance companies ("Participating
Insurance Companies") that have entered into a participation agreement
("Participation Agreement") with the Distributor and/or the Trust
providing for such Shares of the Trust to serve as funding vehicles for
variable insurance accounts (each an "Account") underlying variable
annuity contracts and/or variable life insurance contracts ("Contracts"),
provided that Distributor may in its discretion refuse to accept orders
for Shares from any particular applicant. The Trust may appoint
Participating Insurance Companies as agents of the Trust for the limited
purpose of receiving purchase and redemption requests on behalf of their
Accounts (but not with respect to any Trust Shares that may be held in
the general account of such Participating Insurance Company) for Shares
of those funds made available thereunder, based on allocations of amounts
to the Account or subaccounts thereof under the Contracts, other
transactions relating to the Contracts or the Account and customary
processing of the Contracts.
(c) Sale of Shares. Subject to the provisions of paragraph (d)
hereof and to such minimum purchase requirements as may from time to time
be currently indicated in the Trust's prospectus, Distributor is
authorized to sell as agent on behalf of the Trust authorized and
unissued Shares of the Trust registered under the 1933 Act to
Participating Insurance Companies, provided that each such sale is made
in accordance with the terms of the applicable Participation Agreement.
The sales price of such Shares shall be their net asset value provided
that each such sale is made as defined in Section 4 hereof.
(d) Sale of Shares to Participating Insurance Companies by the
Trust. Any right granted to Distributor to accept orders for Shares or
make sales on behalf of the Trust will not apply to Shares issued in
connection with the merger or consolidation of any other investment
company with the Trust or its acquisition, by purchase or otherwise, of
all or substantially all the assets of any investment company or
substantially all the outstanding Shares of any such company, and such
right shall not apply to Shares that may be offered by the Trust to
shareholders by virtue of their being shareholders of the Trust,
including Shares issued in payment of any dividend or distribution by the
Trust.
SECTION 2. SALES LITERATURE AND ADVERTISEMENTS.
All sales literature and advertisements used by Distributor in
connection with the sale of the Trust's Shares must be approved in
advance by a Trust officer. In connection with the sale or arranging for
the sale of the Trust's Shares, Distributor is authorized to give only
such information and to make only such statements or representations as
are contained in each fund's Prospectus then currently in effect under
the Trust's Registration Statement, or in sales literature or
advertisements approved by the Trust.
SECTION 3. LIMITATION UPON INVESTMENT IN THE TRUST.
Distributor shall not accept any initial or subsequent investment in
Shares of a fund, except as described in the fund's then-current
Prospectus and Statement of Additional Information.
SECTION 4. OFFERING PRICE & NET ASSET VALUE PER SHARE.
Shares of each fund sold under this Agreement to Participating
Insurance Companies shall be sold only at the offering price in effect
after receipt of a purchase order by a Participating Insurance Company in
accordance with the terms of the applicable Participation Agreement, such
price as described in the fund's then-current Prospectus and Statement of
Additional Information, and the fund shall receive not less than the full
net asset value therefor.
Any reference to "net asset value per share" shall refer to each
fund's net asset value per Share computed in accordance with the Trust's
Declaration of Trust, the fund's then-current Prospectus and Statement of
Additional Information and the instructions of the Trustees, all as
amended from time to time. The Trust or its agent will advise Distributor
as promptly as practicable of each fund's net asset value per share on
each day on which it is determined.
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SECTION 5. DUTIES UPON SALE OR REDEMPTION OF SHARES.
Distributor shall remit or cause to be remitted to the Trust's
custodian or transfer agent, as applicable, the net asset value per share
of all Shares of each fund sold by Distributor. Each fund will, as
promptly as practicable, cause the account of the purchaser to be
credited with the number of Shares purchased. The Trust will not issue
Share certificates.
Distributor shall process or cause to be processed requests received
from each fund's shareholders for redemption of its Shares, in the manner
prescribed in the fund's then-current Prospectus and Statement of
Additional Information. Shares shall be redeemed at their net asset value
per share next computed after receipt of the redemption request, subject
to any applicable redemption fee as set forth in the fund's then-current
Prospectus. Distributor shall arrange for payment to such shareholders
from each fund's account with the custodian or transfer agent, as
applicable.
SECTION 6. INFORMATION RELATING TO THE TRUST.
The Trust or its agent will furnish Distributor with a certified
copy of all financial statements and a signed copy of each report
prepared by its independent public accountants, and will cooperate fully
with Distributor in its efforts to sell the funds' Shares, and in the
performance by Distributor of all of its duties under this Agreement. The
Trust's Declaration of Trust is on file with the Secretary of State of
the Commonwealth of Massachusetts.
SECTION 7. FILING OF REGISTRATION STATEMENTS.
The Trust or its agent will from time to time file (and furnish
Distributor with copies of) such registration statements, amendments and
supplements thereto, and reports or other documents as may be required
under the 1933 Act, the 1940 Act or the laws of the states in which
Distributor desires to sell Shares of the funds.
SECTION 8. MULTIPLE CAPACITIES.
Distributor shall give the Trust equitable treatment under the
circumstances in supplying services in any capacity, but the Trust
recognizes that it is not entitled to receive preferential treatment from
Distributor as compared with the treatment given to any other investment
company or customer. Whenever Distributor shall act in multiple
capacities on behalf of the Trust, Distributor shall maintain the
appropriate separate account and records for each such capacity.
SECTION 9. PAYMENT OF FEES AND EXPENSES.
Distributor shall, at its own expense, finance certain activities
incident to the sale and distribution of the Shares of the funds,
including, but not limited to, compensation of its sales force, expenses
of preparing, printing and distributing advertising and sales literature
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and reports to owners of Shares or Contracts used in connection with the
sale of a fund's Shares, and certain other expenses associated with the
distribution of Shares of the funds.
Distributor shall be entitled to receive for its services as
distributor the fees payable in accordance with any plans adopted by the
funds (or class of interests of the respective funds) pursuant to Rule
12b-1 under the 1940 Act, and may remit such fees to, among others,
Participating Insurance Companies in accordance with the terms of any
such plan.
SECTION 10. LIABILITY OF THE DISTRIBUTOR.
Distributor shall be liable for its own acts and omissions caused by
Distributor's willful misfeasance, bad faith, or gross negligence in the
performance of Distributor's duties, or by Distributor's reckless
disregard of its obligations under this Agreement, and nothing herein
shall protect Distributor against any such liability to the Trust or its
shareholders. Subject to the first sentence of this Section, Distributor
shall not be liable for any action taken or omitted on advice, obtained
in good faith, of counsel, provided such counsel is satisfactory to the
Trust.
SECTION 11. TERMINATION OF AGREEMENT; ASSIGNMENT.
This Agreement may be terminated at any time, without the payment of
any penalty, on 60 days' written notice (i) by Distributor; (ii) by the
Trust, acting pursuant to a resolution adopted by the non-interested
Trustees; or (iii) by the vote of the holders of the lesser of (1) 67% of
the Trust's Shares present at a meeting if the holders of more than 50%
of the outstanding Shares are present in person or represented by proxy,
or (2) more than 50% of the outstanding Shares of the Trust. This
Agreement shall automatically terminate in the event of its assignment.
Termination shall not affect the rights of the parties which have accrued
prior thereto.
SECTION 12. DURATION.
Unless sooner terminated, this Agreement shall continue in effect
for one year from the date herein above first written, and from year to
year thereafter until terminated, provided that the continuation of this
Agreement and the terms hereof are specifically approved annually in
accordance with the requirements of the 1940 Act as modified or
superseded by any rule, regulation, order or interpretive position of the
Commission.
SECTION 13. NON-LIABILITY OF CERTAIN PERSONS.
Any obligation of the Trust hereunder shall be binding only upon the
assets and property of the Trust (or the applicable fund thereof) and
shall not be binding only upon any Trustee, officer, employee, agent,
member or shareholder of the Trust. Neither the authorization of any
action by any Trustee, officer, employee, agent, member or shareholder of
the Trust nor the execution of this agreement on behalf of the Fund shall
impose any liability upon any Trustee, officer, employee, agent, member
or shareholder of the Trust.
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SECTION 14. DEFINITIONS.
The terms "assignment" and "interested person" when used in this
Agreement shall have the meanings given such terms in the 1940 Act.
SECTION 15. CONCERNING APPLICABLE PROVISIONS OF LAW, ETC.
This Agreement shall be subject to all applicable provisions of law,
including, without being limited to, the applicable provisions of the
1940 Act, the 1933 Act, and the Securities Exchange Act of 1934, as
amended; and to the extent that any provisions of this Agreement are in
conflict with such laws, the latter shall control.
The laws of the State of Illinois shall govern the construction,
validity and effect of this Agreement.
Distributor agrees that in selling and purchasing the Shares of the
Trust, it will duly conform in all respects with the laws of the United
States and any state or country in which such Shares may be offered for
sale by Distributor pursuant to this Agreement.
SECTION 16. MISCELLANEOUS.
The obligations of the Trust and each fund are not personally
binding upon, nor shall resort be had to the private property of, any of
the Trustees, shareholders, officers, employees or agents of the Trust or
any fund, but only the relevant fund's property shall be bound. No fund
shall be liable for the obligations of any other fund.
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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 above written.
FIRST TRUST VARIABLE INSURANCE TRUST
By:_______________________________________
Name:__________________________________
Title:_________________________________
FIRST TRUST PORTFOLIOS L.P.
By:_______________________________________
Name:__________________________________
Title:_________________________________
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APPENDIX A
First Trust/Dow Xxxxx Dividend & Income Allocation Portfolio
