DISTRIBUTION AGREEMENT
Exhibit (e)(2)
This Agreement is made the 31st day of August, 2004, by and between ING Variable Insurance
Trust, a Delaware business trust (the “Trust”) and ING Funds Distributor, LLC, a Delaware limited
liability corporation (the “Distributor”).
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (the
“1940 Act”), as a diversified open-end investment company and offers its shares continuously to
separate accounts of insurance companies (the “Separate Accounts”) to serve as an investment option
under variable annuity contracts or variable life insurance policies issued by the insurance
companies; and its shares may be sold in the future to separate accounts of other affiliated or
unaffiliated insurance companies; and
WHEREAS, the Distributor is registered as a broker-dealer under the Securities Exchange Act of
1934 and is a member of the National Association of Securities Dealers, Inc. (the “NASD”); and
WHEREAS, the Trust and the Distributor wish to enter into this Agreement whereby the
Distributor will act as the Trust’s principal underwriter for the sale of shares of the Funds
listed on the attached Schedule A comprising the Trust to the Separate Accounts;
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of the Distributor
The Trust hereby appoints the Distributor as the principal underwriter and distributor of the
Trust to sell shares of the Trust’s Funds to the Separate Accounts and any other persons, and the
Distributor hereby accepts such appointment.
2. Purchase of Shares from the Trust
A. The Trust herewith engages the Distributor to act as exclusive distributor of the shares of
its separate series, and any other series which may be designated from time to time hereafter (each
a “Fund,” collectively the “Funds”), named and described on Schedule A attached hereto and
incorporated by reference. Said sales shall be made only to investors eligible to invest in a
registered investment company consistent with such company’s serving as an investment vehicle for
variable annuities and variable life insurance company contracts. Distributor need not hold itself
available to receive by mail, telex and/or telephone, orders for the purchase of shares.
B. All shares sold by the Distributor under this Agreement shall be sold at the net asset
value per share (“Offering Price”) determined in the manner described in the Trust’s prospectus, as
it may be amended from time to time.
3. Redemption of Shares by the Trust
A. Any of the outstanding shares of each Fund may be tendered for redemption at any time, and
the Trust agrees to redeem any such shares so tendered in accordance with the applicable provisions
of the prospectus and the Trust’s Trust Instrument and By-Laws. The redemption price is the net
asset value per share next determined after the initial receipt of proper request for redemption.
B. The right to redeem shares or to receive payment with respect to any redemption may be
suspended only in accordance with applicable law.
4. Duties of the Trust
A. The Trust shall furnish to the Distributor copies of all information, financial statements
and other papers which the Distributor may reasonably request for use in connection with the
distribution of the shares of the Trust.
B. The Trust shall take, from time to time, subject to the necessary approval of its
shareholders, all necessary action to fix the number of its authorized shares and to register
shares under the Securities Act of 1933, as amended (the “1933 Act”), in order that there will be
available for sale at least the number of shares as investors may reasonably be expected to
purchase.
5. Duties of the Distributor
In selling the shares of the Trust, the Distributor shall use its best efforts to conform with
the requirements of all applicable federal and state laws and regulations, and the regulations of
the NASD, relating to the sale of such securities. Except as provided below, the Distributor is
not authorized by the Trust to give any information or make any representations, other than those
contained in the registration statement for the Trust and its shares, the prospectus, and any sales
literature specifically approved by a principal of the Distributor. The Distributor shall furnish
applicable federal and state regulatory authorities with any information or reports in connection
with its services under this Agreement, which such authorities may request in order to ascertain
whether the Trust’s operations are being conducted in a manner consistent with any applicable law
or regulations. Nothing contained in this Agreement shall prevent the Distributor from entering
into distribution agreements with other investment companies.
6. Allocation of Expenses
A. The Trust will pay the following expenses in connection with the sales and distribution of
shares of the Funds.
1. expenses pertaining to the preparation of its audited and certified financial
statements to be included in any amendments (the “Amendments”) to the Trust’s registration
statement under the 1933 Act, including the prospectus and Statement of Additional
Information (the “SAI”) included therein;
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2. expenses pertaining to the preparation, printing, and distribution of any reports or
communications, including the prospectus and SAI, which are sent to existing shareholders of
the Trust;
3. filing and other fees to federal and state securities regulatory authorities
necessary to register and maintain registration of the shares; and
4. expenses of the Trust’s administration, including all costs and expenses in
connection with the issuance, transfer and registration of the shares, including, but not
limited to, any taxes and other governmental charges in connection therewith.
B. The Distributor will pay the following expenses:
1. expenses of printing additional copies of the prospectus and SAI and any Amendments
or supplements thereto which are necessary to continue to offer shares of the Trust’s Funds
to the public; and
2. expenses pertaining to the printing of additional copies, for use by the Distributor
as sales literature, of reports or other communications which have been prepared for
distribution to existing shareholders of the Trust or incurred by the Distributor in
advertising, promoting and selling shares of the Trust’s Funds.
7. Compensation
The Trust shall not pay any compensation to the Distributor for its services as a distributor
hereunder, nor shall the Trust reimburse the Distributor for any expenses related to such services
except to the extent permitted under a distribution plan adopted by the Trust pursuant to Rule
12b-1 under the 1940 Act. Distributor may receive a fee described in any distribution plan adopted
by the Trust pursuant to Rule 12b-1 under the 1940 Act.
8. Records
All records maintained by the Distributor in connection with this Agreement shall be the
property of the Trust and shall be returned to the Trust upon termination of this Agreement, free
from any claims or retention of rights by the Distributor. The Distributor shall keep confidential
any information obtained pursuant to this Agreement and shall disclose such information, only if
the Trust has authorized such disclosure, or if such disclosure is expressly required by applicable
federal or state regulatory authorities.
9. Duration and Termination of this Agreement
This Agreement shall become effective on the date first written above or on such later date
approved by the Trust’s Board of Trustees (the “Board”), including a majority of those Trustees who
are not parties to this Agreement or interested persons (as such term is defined in the 1940 Act)
thereof. Unless terminated as provided herein, the Agreement shall continue in full force and
effect through September 1, 2005, and shall continue in effect from year to year thereafter for
successive one (1) year periods if approved at least annually (i) by a vote of a
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majority of the outstanding voting securities of the Funds or by a vote of the Trustees of the
Trust, and (ii) by a vote of a majority of the Trustees of the Trust who are not interested persons
or parties to this Agreement (other than as Trustees of the Trust), cast in person at a meeting
called for the purpose of voting on this Agreement.
This Agreement may be terminated at any time without penalty on at least sixty (60) days’
notice by the Trust’s Board or by a majority vote of its shareholders, with respect to any Fund by
a majority vote of the shareholders of the capital stock of such Fund, or by the Distributor on
sixty (60) days’ notice.
This Agreement shall terminate automatically in the event of its assignment.
10. Amendment
No provision of this Agreement may be changed, waived, discharged or terminated orally, but
only in writing signed by the party against which enforcement of the change, waiver, discharge or
termination is sought. If shareholder approval of an amendment is required under the 1940 Act, no
such amendment shall become effective until approved by the requisite number of outstanding shares
of the Trust. Otherwise, a written amendment of this Agreement is effective upon the approval of
the Board and the Manager.
11. Miscellaneous
This Agreement shall be subject to the laws of the State of Delaware and shall be interpreted
and construed to further and promote the operation of the Trust as an open-end investment company.
As used herein, the terms “Net Asset Value,” “Investment Company,” “Open-End Investment Company,”
“Assignment,” “Principal Underwriter,” “Interested Person,” and “Majority of the Outstanding Voting
Securities,” shall have the meanings set forth in the 1933 Act and the 1940 Act, as applicable, and
the rules and regulations promulgated thereunder.
12. Liability
Nothing contained herein shall be deemed to protect the Distributor against any liability to
the Trust or its shareholders to which the Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of the Distributor’s duties
hereunder, or by reason of the Distributor’s reckless disregard of its obligations and duties
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
officers below as of the day and year first above written.
| ING VARIABLE INSURANCE TRUST |
||||
| By: | /s/ Xxxxxx X. Naka | |||
| Xxxxxx X. Naka | ||||
| Senior Vice President | ||||
| ING FUNDS DISTRIBUTOR, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Executive Vice President | ||||
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SCHEDULE A
with respect to the
between
and
ING FUNDS DISTRIBUTOR, LLC
Fund
ING VP Worldwide Growth Portfolio
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