Exhibit (e)
UNDERWRITING AGREEMENT
ING PARTNERS, INC.
THIS AGREEMENT, is entered into as of the ____ day of _________, 2003, by and
between ING Financial Advisers, LLC) ("IFA"), a Delaware limited liability
company, and ING Partners, Inc. (the "Fund").
WHEREAS, the Fund is an open-end management investment company registered with
the Securities and Exchange Commission ("Commission") under the Investment
Company Act of 1940 ("1940 Act") and is authorized to issue shares of distinct
investment portfolios; and
WHEREAS, the Fund has registered the shares of its common stock ("Shares") in
its Portfolios for offer and sale to the public under the Securities Act of
1933, as amended; and
WHEREAS, the Fund offers the separate portfolios listed on the attached Schedule
A ("Initial Portfolios") and the Company may, from time to time, offer shares
representing interests in one or more additional portfolios ("Additional
Portfolios", referred to collectively with the Initial Portfolios as the
"Portfolios"); and
WHEREAS, the Fund, on behalf of its Portfolios, wishes to retain IFA, and IFA is
willing to act, as principal underwriter in connection with the offer and sale
of the Shares;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties agree as follows:
1. APPOINTMENT OF UNDERWRITER. The Fund hereby appoints IFA and IFA hereby
accepts appointment as underwriter in connection with the distribution of the
Shares. The Fund authorizes IFA to solicit orders for the purchase of the Shares
as set forth in the Registration Statement on Form N-1A currently effective with
the Commission. It is understood that the Shares are offered only to variable
annuity and variable life insurance separate accounts, qualified pension and
retirement plans outside the separate account context and certain investment
advisers or their affiliates.
2. COMPENSATION. IFA shall receive no separate compensation for providing
services under this Agreement. It is understood that the compensation IFA
receives in connection with the issuance of the variable annuity contracts,
variable life policies or products outside the separate account context shall be
the only consideration it receives for serving as underwriter hereunder.
3. IFA EXPENSES. IFA shall be responsible for any costs of printing and
distributing prospectuses and statements of additional information necessary to
offer and sell the Shares to prospective shareholders, and such other sales
literature, reports, forms and advertisements as it elects to prepare, provided
such materials comply with the applicable provisions of federal and state law.
4. FUND EXPENSES. The Fund shall be responsible for the costs of registering the
Shares with the Commission and for the costs of preparing, prospectuses,
statements of additional information, periodic fund reports and such other
documents as are required to maintain the registration of the Shares with the
Commission. The Fund shall be responsible for the printing and distribution of
such documents to existing shareholders.
5. SHARE CERTIFICATES. The Fund shall not issue certificates representing
Shares.
6. STATUS OF UNDERWRITER AND OTHER PERSONS. IFA is an independent contractor and
shall be agent for the Fund only in respect to the sale and redemption of the
Shares. Any person, even though also an officer, director, employee or agent of
IFA, who may be or become an officer, director, employee or agent of the Fund,
shall be deemed, when rendering services to the Fund or acting in any business
of the Fund, to be rendering such services to or acting solely for the Fund and
not as an officer, director, employee or agent or one under the control or
direction of IFA even though paid by IFA.
7. NONEXCLUSIVITY. The services of IFA to the Fund under this Agreement are not
to be deemed exclusive, and IFA shall be free to render similar services or
other services to others and to engage in other activities related or unrelated
to those provided under this Agreement.
8. TERM. This Agreement shall become effective with respect to each Initial
Portfolio on the date of its execution and with respect to any Additional
Portfolios, on the later of the date Schedule A is amended to reflect such
Additional Portfolio or the date of the commencement of operations of the
Additional Portfolios.
Unless terminated in accordance with Section 10 below, this Agreement shall
remain in full force and effect through November 30, 2002 with respect to each
Initial Portfolio and, with respect to each Additional Portfolio, for two years
from the date on which such Portfolio becomes a Portfolio hereunder.
9. RENEWAL. Following the expiration of its initial term with respect to a
Portfolio, this Agreement shall continue in full force and effect for periods of
one year thereafter, provided that such continuance is specifically approved at
least annually by the Fund's Board of Directors, or by the vote of a majority of
the Fund's outstanding voting securities (as defined in Section 2(a)(42) of the
1940 Act), and approved by vote of a majority of Directors who are not parties
to this Agreement or interested persons (as defined in Section 2(a)(19) of the
0000 Xxx) of the Fund or of IFA, cast in person at a meeting called for the
purpose of voting on such approval. This Agreement will automatically terminate
in the event of its assignment.
10.. TERMINATION. Notwithstanding, the foregoing, this Agreement may be
terminated with respect to a Portfolio at any time, by either party, without the
payment of any penalty, on sixty (60) days' written notice to the other party.
11. LIABILITY OF IFA. IFA shall be liable to the Fund and shall indemnify the
Fund for any losses incurred by the Fund, to the extent that such losses
resulted from an act or omission on the part of IFA or its officers, directors
or employees in carrying out its duties hereunder, that is found to involve
willful misfeasance, bad faith or negligence, or reckless disregard by IFA of
its duties under this Agreement.
12. AMENDMENTS. This Agreement may be amended or changed with respect to a
Portfolio only by an instrument in writing signed by both parties.
13. APPROVAL, AMENDMENT OR TERMINATION. Any approval, amendment or termination
of this Agreement with respect to a Portfolio will not require the approval of
any other Portfolio or the approval of a majority of the outstanding voting
securities of the Fund, unless such approval is required by applicable law.
14. APPLICABLE LAW. This Agreement shall be construed in accordance with the
laws of the State of Connecticut and the 1940 Act. To the extent that the
applicable laws of the State of Connecticut conflict with the applicable
provisions of the 1940 Act, however, the latter shall control.
15. NOTICES. Any notices under this Agreement shall be in writing, addressed and
delivered, mailed postage paid, or sent by other delivery service, or by
facsimile transmission to each party at such address as each party may designate
for the receipt of notice. Until further notice, such addresses shall be:
if to the Fund or IFA:
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax number: 860/000-0000
16. QUESTIONS OF INTERPRETATION. This Agreement shall be governed by the laws
of the State of Connecticut. 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 1940 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, releases or orders of the Commission issued pursuant to the 1940 Act.
In addition, where the effect of a requirement of the 1940 Act reflected in the
provisions of this Agreement is revised by rule, release or order of the
Commission, such provisions shall be deemed to incorporate the effect of such
rule, release or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their respective officers as of the date first written above.
ING FINANCIAL ADVISERS, LLC ING PARTNERS, INC.
By: By:
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Name: Name: Xxxxxx X. Xxxxxxxxxxx
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Title: Title: President
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Schedule A
Portfolios of ING Partners, Inc.
Initial Portfolios
o ING Xxxxx Growth Portfolio
o ING Xxxxx Aggressive Growth Portfolio
o ING American Century Small Cap Value Portfolio
o ING Baron Small Cap Growth Portfolio
o ING DSI Enhanced Index Portfolio
o ING Xxxxxxx Xxxxx Capital Growth Portfolio
o ING XX Xxxxxx Xxxxxxx International Portfolio
o ING XX Xxxxxx Mid Cap Value Portfolio
o ING MFS Capital Opportunities Portfolio
o ING MFS Global Growth Portfolio
o ING MFS Research Equity Portfolio
o ING OpCap Balanced Value Portfolio
o ING PIMCO Total Return Portfolio
o ING Salomon Brothers Aggressive Growth Portfolio
o ING Salomon Brothers Investors Value Portfolio
o ING Salomon Brothers Fundamental Value Portfolio
o ING X. Xxxx Price Growth Equity Portfolio
o ING UBS Tactical Asset Allocation Portfolio
o ING Xxx Xxxxxx Xxxxxxxx Portfolio
o
Additional Portfolios
o [ING Xxxxx Capital Appreciation Portfolio]
o [ING Xxxxxxx Xxxxx(R)Core Equity Portfolio]
Dated:
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