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Exhibit 5(A)
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated as of September 9, 1994, by and between
TOUCHSTONE ADVISORS, INC., an Ohio corporation (the "Advisor"), and SELECT
ADVISORS PORTFOLIOS, a New York master trust created pursuant to a Declaration
of Trust dated February 7, 1994, as amended from time to time (the "Trust").
WHEREAS, the Trust is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended, (the
"1940 Act"); and
WHEREAS, interests in the Trust are divided into separate subtrusts (each,
along with any subtrust which may in the future be established, a "Portfolio");
and
WHEREAS, the Trust desires to avail itself of the services, information,
advice, assistance and facilities of an investment advisor and to have an
investment advisor perform for it various investment advisory and research
services and other management services; and
WHEREAS, the Advisor is an investment Advisor registered under the
Investment Advisers Act of 1940, as amended, and desires to provide investment
advisory services to the Trust;
NOW THEREFORE, in consideration of the terms and conditions hereinafter
set forth, it is agreed as follows:
1. EMPLOYMENT OF THE ADVISOR. he Trust hereby employs the Advisor to
manage the investment and reinvestment of the assets of each Portfolio subject
to the control and direction of the Trust's Board of Trustees, for the period on
the terms hereinafter set forth. The Advisor hereby accepts such employment and
agrees during such period to render the services and to assume the obligations
herein set forth for the compensation herein provided. The Advisor shall for all
purposes herein be deemed to be independent contractor and shall, except as
expressly provided or authorized (whether herein or otherwise), have no
authority to act for or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. OBLIGATIONS AND SERVICES TO BE PROVIDED BY THE ADVISOR. In providing
the services and assuming the obligations set forth herein, the Advisor may, at
its expense, employ one or more subadvisors for any Portfolio. Any agreement
between the Advisor and a subadvisor shall be subject to the renewal,
termination and amendment provisions of paragraph 10 hereof. The Advisor
undertakes to provide the following
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services and to assume the following obligations:
a) The Advisor will manage the investment and reinvestment of
the assets of each Portfolio, subject to and in accordance
with the respective investment objectives and policies of
each Portfolio and any directions which the Trust's Board
of Trustees may issue from time to time. In pursuance of
the foregoing, the Advisor may engage separate investment
advisors ("Portfolio Advisor(s)") to make all
determinations with respect to the investment of the assets
of each Portfolio, to effect the purchase and sale of
portfolio securities and to take such steps as may be
necessary to implement the same. Such determination and
services by each Portfolio Advisor shall also include
determining the manner in which voting rights, rights to
consent to corporate action and any other rights pertaining
to the portfolio securities shall be exercised. The
Advisor shall, and shall cause each Portfolio Advisor to,
render regular reports to the Trust's Board of Trustees
concerning the Trust's and each Portfolio's investment
activities.
b) The Advisor shall, or shall cause the respective Portfolio
Advisor(s) to place orders for the execution of all
portfolio transactions, in the name of the respective
Portfolio and in accordance with the policies with respect
thereto set forth in the Trust's registration statements
under the 1940 Act and the Securities Act of 1933, as such
registration statements may be amended from time to time.
In connection with the placement of orders for the
execution of portfolio transactions, the Advisor shall
create and maintain (or cause the Portfolio Advisors to
create and maintain) all necessary brokerage records for
each Portfolio, which records shall comply with all
applicable laws, rules and regulations, including but not
limited to records required by Section 31(a) of the 1940
Act. All records shall be the property of the Trust and
shall be available for inspection and use by the Securities
and Exchange Commission (the "SEC"), the Trust or any
person retained by the Trust. Where applicable, such
records shall be maintained by the Advisor (or Portfolio
Advisor) for the periods and in the places required by Rule
31a-02 under the 1940 Act.
c) In the event of any reorganization or other change in the
Advisor, its investment principals, supervisors or members of
its investment (or comparable) committee, the Advisor shall
give the Trust's Board of Trustees written notice of such
reorganization or change within a reasonable time (but not
later than 30 days) after such reorganization or change.
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d) The Advisor shall bear its expenses of providing services to
the Trust pursuant to this Agreement except such expenses as
are undertaken by the Trust. In addition, the Advisor shall
pay the salaries and fees, if any, of all Trustees, officers
and employees of the Trust who are affiliated persons, as
defined in Section 2(a)(3) of the 1940 Act, of the Advisor.
e) The Advisor will manage, or will cause the Portfolio Advisors
to manage, the Portfolio Assets and the investment and
reinvestment of such assets so as to comply with the
provisions of the 1940 Act and with Subchapter M of the
Internal Revenue Code of 1986, as amended.
3 EXPENSES. The Trust shall pay the expenses of its operation, including
but not limited to (i) charges and expenses for Trust accounting, pricing and
appraisal services and related overhead, (ii) the charges and expenses of the
Portfolio's auditor's; (iii) the charges and expenses of any custodian, transfer
agent, plan agent, dividend disbursing agent and registrar appointed by the
Trust with respect to the Portfolios; (iv) brokers' commissions, and issue and
transfer taxes, chargeable to the Trust in connection with securities
transactions to which the Trust is a party; (v) insurance premiums, interest
charges, dues and fees for Trust membership in trade associations and all taxes
and fees payable by the Trust to federal, state or other governmental agencies;
(vi) fees and expenses involved in registering and maintaining registrations of
the Trust and/or interests in the Trust with the SEC, state or blue sky
securities agencies and foreign countries, including the preparation of
Prospectuses and Statements of Additional Information for filing with the SEC;
(vii) all expenses of meetings of Trustees and of interest holders of the Trust
and of preparing, printing and distributing prospectuses, notices, proxy
statements and all reports to shareholders and to governmental agencies; (viii)
charges and expenses of legal counsel to the Trust; (ix) compensation of
Trustees of the Trust; (x) the cost of preparing and printing share
certificates; and (xi) interest on borrowed money, if any.
4 COMPENSATION OF THE ADVISOR.
a) As compensation for the services rendered and obligations
assumed hereunder by the Advisor, the Trust shall pay to
the Advisor monthly a fee that is equal on an annual basis to
that percentage of the average daily net assets of each
Portfolio set forth on Schedule 1 attached hereto (and with
respect to any future Portfolio, such percentage as the
Trust and the Advisor may agree to from time to time). Such
fee shall be computed and accrued daily. If the Advisor
serves as investment advisor for less than the whole of
any period specified in this Section 4a, the compensation
to the Advisor shall be prorated. For purposes of
calculating the Advisor's fee, the daily value of each
Portfolio's net assets shall be computed by the same
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method as the Trust uses to compute the net asset value of
that Portfolio.
b) The Advisor will pay all fees owing to each Portfolio Advisor,
and the Trust shall not be obligated to the Portfolio Advisors
in any manner with respect to the compensation of such
Portfolio Advisors.
c) The Advisor reserves the right to waive all or a part of its
fee.
5 ACTIVITIES OF THE ADVISOR. The services of the Advisor to the Trust
hereunder are not to be deemed exclusive, and the Advisor shall be free to
render similar services to others. It is understood that the Trustees and
officers of the Trust are or may become interested in the Advisor as
stockholders, officers or otherwise, and that stockholders and officers of the
Advisor are or may become similarly interested in the Trust, and that the
Advisor may become interested in the Trust as a shareholder or otherwise.
6 USE OF NAMES. The Trust will not use the name of the Advisor in any
prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Advisor; except that the Trust may use
such name in any document which merely refers in accurate terms to its
appointment hereunder or in any situation which is required by the SEC or a
state securities commission; and provided further, that in no event shall such
approval be unreasonably withheld. The Advisor will not use the name of the
Trust in any material relating to the Advisor in any manner not approved prior
thereto by the Trust; except that the Advisor may use such name in any document
which merely refers in accurate terms to the appointment of the Advisor
hereunder or in any situation which is required by the SEC or a state securities
commission. In all other cases, the parties may use such names to the extent
that the use is approved by the party named, it being agreed that in no event
shall such approval be unreasonably withheld.
The Trustees of the Trust acknowledge that, in consideration of the
Advisor's assumption of certain organization expenses of the Trust and of the
various Portfolios, the Advisor has reserved for itself the rights to the name
"Select Advisors Portfolios" (or any similar names) and that use by the Trust of
such name shall continue only with the continuing consent of the Advisor, which
consent may be withdrawn at any time, effective immediately, upon written notice
thereof to the Trust.
7 LIMITATION OF LIABILITY OF THE ADVISOR.
a) Absent willful misfeasance, bad faith, gross
negligence, or reckless disregard of obligations or duties
hereunder on the part of the Advisor, the Advisor shall not be
subject to liability to the Trust or to any holder of an
interest in any Portfolio for any act or omission in the
course of, or connected with, rendering services
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hereunder or for any losses that may be sustained in the
purchase, holding or sale of any security. As used in this
Section 7, the term "Advisor" shall include Touchstone
Advisors, Inc. and/or any of its affiliates and the directors,
officers and employees of Touchstone Advisors, Inc. and/or of
its affiliates.
b) The Trust will indemnify the Advisor against, and
hold it harmless from, any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and
expenses) resulting from acts or omissions of the Trust.
Indemnification shall be made only after: (i) a final decision
on the merits by a court or other body before whom the
proceeding was brought that the Trust was liable for the
damages claimed or (ii) in the absence of such a decision, a
reasonable determination based upon a review of the facts,
that the Trust was liable for the damages claimed, which
determination shall be made by either (a) the vote of a
majority of a quorum of Trustees of the Trust who are neither
"interested persons" of the Trust nor parties to the
proceeding ("disinterested non-party Trustees") or (b) an
independent legal counsel satisfactory to the parties hereto,
whose determination shall be set forth in a written opinion.
The Advisor shall be entitled to advances from the Trust for
payment of the reasonable expenses incurred by it in
connection with the matter as to which it is seeking
indemnification in the manner and to the fullest extent that
would be permissible under the applicable provisions of the
General Corporation Law of Ohio. The Advisor shall provide to
the Trust a written affirmation of its good faith belief that
the standard of conduct necessary for indemnification under
such law has been met and a written undertaking to repay any
such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least
one of the following additional conditions shall be met: (a)
the Advisor shall provide security in form and amount
acceptable to the Trust for its undertaking; (b) the Trust is
insured against losses arising by reason of the advance; or
(c) a majority of a quorum of the Trustees of the Trust, the
members of which majority are disinterested non-party
Trustees, or independent legal counsel in a written opinion,
shall have determined, based on a review of facts readily
available to the Trust at the time the advance is proposed to
be made, that there is reason to believe that the Advisor will
ultimately be found to be entitled to indemnification.
8 LIMITATION OF TRUST'S LIABILITY. The Advisor acknowledges that it has
received notice of and accepts the limitations upon the Trust's liability set
forth in its Declaration of Trust. The Advisor agrees that the Trust's
obligations hereunder in any case shall be limited to the Trust and to its
assets and that the Advisor shall not seek
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satisfaction of any such obligation from the holders of the interests in any
Portfolio nor from any Trustee, officer, employee or agent of the Trust.
9 FORCE MAJEURE. The Advisor shall not be liable for delays or errors
occurring by reason of circumstances beyond its control, including but not
limited to acts of civil or military authority, national emergencies, work
stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riot, or
failure of communication or power supply. In the event of equipment breakdowns
beyond its control, the Advisor shall take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto.
10 RENEWAL, TERMINATION AND AMENDMENT.
a) This Agreement shall continue in effect, unless sooner
terminated as hereinafter provided, for a period of twelve
months from the date hereof and it shall continue
indefinitely thereafter as to each Portfolio, provided that
such continuance is specifically approved by the parties
hereto and, in addition, at least annually by (i) the vote
of holders of a majority of the outstanding voting
securities of the affected Portfolio or by vote of a
majority of the Trust's Board of Trustees and (ii) by the
vote of a majority of the Trustees who are not parties to
this Agreement or interested persons of the Advisor, cast in
person at a meeting called for the purpose of voting on such
approval.
b) This Agreement may be terminated at any time, with respect to
any Portfolio(s), without payment of any penalty, by the
Trust's Board of Trustees or by a vote of the majority of the
outstanding voting securities of the affected Portfolio(s)
upon 60 days' prior written notice to the Advisor and by the
Advisor upon 60 days' prior written notice to the Trust.
c) This Agreement may be amended at any time by the parties
hereto, subject to approval by the Trust's Board of Trustees
and, if required by applicable SEC rules and regulations, a
vote of the majority of the outstanding voting securities of
any Portfolio affected by such change. This Agreement shall
terminate automatically in the event of its assignment.
d) The terms "assignment," "interested persons" and "majority of
the outstanding voting securities" shall have the meaning set
forth for such terms in the 1940 Act.
11 SEVERABILITY. 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
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shall not be affected thereby.
12 MISCELLANEOUS. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Ohio. The captions, in this Agreement are
included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered inn their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Pursuant to the Trust's Declaration of Trust, dated as of February 7, 1994, the
obligations of this Agreement are not binding upon any of the Trustees or
interestholders of the Trust individually, but bind only the Trust estate.
SELECT ADVISORS PORTFOLIOS
By /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxxxxx, Xx., President
Attest:
/s/ Xxxxxx Xxxxxxx
------------------
TOUCHSTONE ADVISORS, INC.
By /s/ Xxxx X. XxXxxxxx
-------------------------------------
Xxxx X. XxXxxxxx, Vice President
Attest:
/s/ Xxxxxx Xxxxxxx
------------------
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SCHEDULE 1
Emerging Growth Portfolio 0.80%
International Equity Portfolio 0.95%
Growth & Income Portfolio 0.75%
Growth & Income Portfolio II 0.75%
Balanced Portfolio 0.70%
Income Opportunity 0.65%
Bond Portfolio 0.55%
Bond Portfolio II 0.55%
Municipal Bond Portfolio 0.55%
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AMENDMENT NO. 1
INVESTMENT ADVISORY AGREEMENT
This Amendment No. 1 to Investment Advisory Agreement is dated as of May
1, 1997 and amends the Investment Advisory Agreement (the "Advisory Agreement")
dated September 9, 1994 made by and between Touchstone Advisors, Inc., an Ohio
corporation (the "Advisor"), and Select Advisors Portfolios, a New York master
trust created pursuant to a Declaration of Trust dated February 7, 1994 (the
"Trust").
WHEREAS, the Advisor acts as investment advisor to the Trust pursuant to
the Advisory Agreement; and in such capacity the Advisor has engaged separate
portfolio advisors for each of the Trust's portfolios; and
WHEREAS, the Trust, by its Board of Trustees, has taken action to
terminate the Trust's Municipal Bond Portfolio and the Portfolio Advisory
Agreement, dated September 9, 1994, presently in effect between the Advisor and
Xxxxxxxxx & Xxxxxx, Portfolio Advisor to such portfolio, each as of the close of
business on April 30, 1997; and
WHEREAS, such Board of Trustees also has taken action to terminate
Portfolio Advisory Agreements presently in effect between the Advisor and Harbor
Capital Management Company, Inc. ("Harbor Capital") and Xxxxxx Xxxxxxxx Capital
Management, Inc. ("Xxxxxx Xxxxxxxx"), each such Portfolio Advisory Agreement
being dated as of September 9, 1994; and
WHEREAS, such Board of Trustees also has taken action to enter into a
Portfolio Advisory Agreement with Op Cap Advisors, a subsidiary of Xxxxxxxxxxx
Capital, a registered investment advisor, under which Op Cap Advisors will act
as Portfolio Advisor to the Trust's Balanced Portfolio, replacing Harbor Capital
and Xxxxxx Xxxxxxxx; and
WHEREAS, the advisory fees to be paid to Op Cap Advisors under such
Portfolio Advisory Agreement will be higher than the fees currently being paid
to Harbor Capital and Xxxxxx Xxxxxxxx under their Portfolio Advisor Agreements
and the Advisor has requested that its fees accordingly, also be increased; and
WHEREAS, shareholders of the Trust, at a meeting of such shareholders held
on April 23, 1997, approved the proposed increase in such fees to be paid under
the Advisory Agreement.
NOW, THEREFORE, Schedule 1 to the Advisory Agreement is hereby amended,
effective as of the close of business on April 30, 1997, to read as set forth in
Exhibit A to this Amendment, the only changes in such Schedule being an increase
in the advisory fees to be paid by the Balanced Portfolio, from 0.70% to 0.80%
of average daily net assets, and the deletion of the Municipal Bond Portfolio.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered in their names and on their behalf as of the day and year first
above written.
SELECT ADVISORS PORTFOLIO
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxxx, Xx., President
TOUCHSTONE ADVISORS INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
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Exhibit A to Amendment No 1
to Advisory Agreement
SCHEDULE 1
Emerging Growth Portfolio 0.80%
International Equity Portfolio 0.95%
Growth & Income Portfolio 0.75%
Growth & Income Portfolio II 0.75%
Balanced Portfolio 0.80%
Income Opportunity 0.65%
Bond Portfolio 0.55%
Bond Portfolio II 0.55%
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AMENDMENT NO. 2
TO
INVESTMENT ADVISORY AGREEMENT
This Amendment No. 2 to Investment Advisory Agreement is dated as of
September 18, 1997 and amends the Investment Advisory Agreement (the "Advisory
Agreement") dated September 9, 1994 made by and between Touchstone Advisors,
Inc., an Ohio corporation (the "Advisor"), and Select Advisors Portfolios, a New
York master trust created pursuant to a Declaration of Trust dated February 7,
1994 (the "Trust").
WHEREAS, the Advisor acts as investment advisor to the Trust pursuant to
the Advisory Agreement and in such capacity has engaged separate portfolio
advisors for each of the Trust's portfolios; and
WHEREAS, Fort Washington Investment Advisors, Inc. ("Fort Washington")
resigned as portfolio advisor to the Trust's Growth & Income Portfolios (the
"Portfolios"), effective at the close of business on August 31, 1997; and
WHEREAS, pursuant to approval given by the Trust's Board of Trustees, the
Advisor, on behalf of the Portfolios, entered into a Portfolio Advisory
Agreement, effective September 1, 1997, with Xxxxxxx Xxxxxxx & Xxxxx, a
registered investment advisor ("Xxxxxxx"), under which Xxxxxxx is now acting as
Portfolio Advisor to the Portfolio (the "Portfolio Agreement"); and
WHEREAS, the holders of interests in the Portfolios approved the Portfolio
Agreement in meetings and actions held and taken on September 18,1997; and
WHEREAS, the advisory fees to be paid by the Advisor to Xxxxxxx under the
Portfolio Agreement for all periods after September 18, 1997 will be higher than
the fees formerly paid to Fort Washington under their portfolio advisor
agreement for the Portfolio, and the Advisor has requested that its fees,
accordingly, also be increased; and
WHEREAS, the holders of interests in the Portfolios approved such increase
in fees under the Advisory Agreement in meetings and actions held and taken on
September 18, 1997;and
NOW, THEREFORE, Schedule 1 to the Advisory Agreement is hereby amended,
effective as of September 18, 1997, to read as set forth in Exhibit A to this
Amendment, the sole change in such Schedule being an increase in the advisory
fees to be paid by the Portfolio, from 0.75% to 0.80%, on the first $150 million
of average daily net assets of the Portfolios.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered in their names and on their behalf as of the day and year first
above written.
SELECT ADVISORS PORTFOLIOS
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
President
TOUCHSTONE ADVISORS INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------
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Exhibit A to Amendment No. 2 to
Advisory Agreement
SCHEDULE 1
Emerging Growth Portfolio 0.80%
Growth & Income Portfolio 0.80% on the first $150 million of average
daily net assets and 0.75% on such assets
in excess of $150 million
Growth & Income II Portfolio 0.80% on the first $150 million of average
daily net assets and 0.75% on such assets
in excess of $150 million
International Equity Portfolio 0.95%
Balanced Portfolio 0.80%
Income Opportunity 0.65%
Bond Portfolio 0.55%
Bond Portfolio II 0.55%
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AMENDMENT NO. 3
TO
INVESTMENT ADVISORY AGREEMENT
BETWEEN
TOUCHSTONE ADVISORS, INC. AND SELECT ADVISORS PORTFOLIOS
This Amendment No. 3 to Investment Advisory Agreement is dated as of May
1, 1998 and amends the Investment Advisory Agreement (the "Advisory Agreement")
dated September 9, 1994 made by and between Touchstone Advisors, Inc., an Ohio
corporation (the "Advisor"), and Select Advisors Portfolios, a New York master
trust created pursuant to a Declaration of Trust dated February 7, 1994 (the
"Trust").
WHEREAS, the Advisor acts as investment advisor to the Trust pursuant
to the Advisory Agreement; and
WHEREAS, a Sub-Trust or series of the Trust to be named Touchstone Value
Plus Portfolio has been established and designated by the Trust's Board of
Trustees;
NOW, THEREFORE, Schedule 1 to the Advisory Agreement is hereby amended,
effective as of May 1, 1998, to read as set forth in Exhibit A to this
Amendment, the sole change in such Schedule being the addition of the Value Plus
Portfolio.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered in their names and on their behalf as of the day and year first
above written.
SELECT ADVISORS PORTFOLIOS
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxxx, Xx.,
President
TOUCHSTONE ADVISORS INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Xxxxxxxx X. Xxxxxx
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Exhibit A to Amendment No. 3 to
Investment Advisory Agreement
SCHEDULE 1
Emerging Growth Portfolio 0.80%
Growth & Income Portfolio 0.80% on the first $150 million of average
daily net assets and 0.75% on such assets
in excess of $150 million
Growth & Income II Portfolio 0.80% on the first $150 million of average
daily net assets and 0.75% on such assets
in excess of $150 million
International Equity Portfolio 0.95%
Balanced Portfolio 0.80%
Income Opportunity Portfolio 0.65%
Bond Portfolio 0.55%
Bond Portfolio II 0.55%
Value Plus Portfolio 0.75%
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