SUB-ADVISORY AGREEMENT
TOUCHSTONE GROWTH & INCOME FUND
TOUCHSTONE VARIABLE SERIES TRUST
This SUB-ADVISORY AGREEMENT is made as of January 1, 1999, by and
between TOUCHSTONE ADVISORS, INC., an Ohio corporation (the "Advisor"), and
XXXXXXX XXXXXX INVESTMENTS, INC., a Delaware corporation (the "Sub-Advisor").
WHEREAS, the Advisor is an investment advisor registered under the
Investment Advisers Act of 1940, as amended, and has been retained by Touchstone
Variable Series Trust (formerly Select Advisors Variable Insurance Trust) (the
"Trust"), a Massachusetts business trust organized pursuant to a Declaration of
Trust dated February 7, 1994 and registered as an open-end diversified
management investment company under the Investment Company Act of 1940 (the
"1940 Act"), to provide investment advisory services to the Touchstone Growth &
Income Fund (the "Fund"); and
WHEREAS, the Sub-Advisor also is an investment advisor registered under
the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Advisor desires to retain the Sub-Advisor to furnish it
with portfolio management services in connection with the Advisor's investment
advisory activities on behalf of the Fund, and the Sub-Advisor is willing to
furnish such services to the Advisor and the Fund;
NOW THEREFORE, in consideration of the terms and conditions hereinafter
set forth, it is agreed as follows:
1. EMPLOYMENT OF THE SUB-ADVISOR. In accordance with and subject to the
Investment Advisory Agreement between the Trust and the Advisor, attached hereto
as Exhibit A (the "Advisory Agreement"), the Advisor hereby appoints the
Sub-Advisor to manage the investment and reinvestment of those assets of the
Fund allocated to it by the Advisor (the "Fund Assets"), subject to the control
and direction of the Advisor and the Trust's Board of Trustees, for the period
and on the terms hereinafter set forth. The Advisor hereby represents that (i)
it has authority under the Advisory Agreement to appoint the Sub-Advisor to act
as an investment advisor to the Trust, and (ii) this Agreement is valid and
binding upon the Advisor. The Sub-Advisor hereby accepts such employment and
agrees during such period to render the services and to perform the duties
called for by this Agreement for the compensation herein provided. The
Sub-Advisor shall at all times maintain its registration as an investment
advisor under the Investment Advisers Act of 1940 and shall otherwise comply in
all material respects with all applicable laws and regulations, both state and
federal. The Sub-Advisor shall for all purposes herein be deemed an 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 or the Fund.
2. DUTIES OF THE SUB-ADVISOR. The Sub-Advisor will provide the
following services and undertake the following duties:
a. The Sub-Advisor will manage the investment and reinvestment
of the assets of the Fund, subject to and in accordance with the
investment objectives, policies and restrictions of the Fund and any
directions which the Advisor or the Trust's Board of Trustees may give
from time to time with respect to the Fund. In furtherance of the
foregoing, the Sub-Advisor will make all determinations with respect to
the investment of the assets of the Fund and the purchase and sale of
portfolio securities and shall take such steps as may be necessary or
advisable to implement the same. The Sub-Advisor also will determine
the manner in which voting rights, rights to consent to corporate
action and any other rights pertaining to the portfolio securities will
be exercised. The Sub-Advisor will render regular reports to the
Trust's Board of Trustees, to the Advisor and to BARRA RogersCasey,
Inc. (or such other advisor or advisors as the Advisor shall engage to
assist it in the evaluation of the performance and activities of the
Sub-Advisor). Such reports shall be made in such form and manner and
with respect to such matters regarding the Fund and the Sub-Advisor as
the Trust, the Advisor or BARRA RogersCasey, Inc. shall from time to
time reasonably request.
b. The Sub-Advisor shall provide support to the Advisor with
respect to the marketing of the Fund in a manner comparable to the
support provided to comparable clients of the Sub-Advisor, including
but not limited to: (i) permission to use the Sub-Advisor's name as
provided in Section 6, (ii) permission to use the past performance and
investment history of the Sub-Advisor as the same is applicable to the
Fund, provided counsel to the Trust determine that the use of such
information and the manner of presentation of such information is
legally permissible, (iii) access to the individual(s) responsible for
day-to-day management of the Fund for marketing conferences,
teleconferences and other activities involving the promotion of the
Fund, subject to the reasonable request of the Advisor, (iv) permission
to use biographical and historical data of the Sub-Advisor and
individual manager(s), and (v) with respect to clients whose names are
provided to the Advisor by the Sub-Advisor in writing prior to use,
permission to use the names of these clients, subject to any
restrictions imposed by clients on the use of such names or by the
Investment Advisors Act of 1940 and the rules adopted thereunder.
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c. The Sub-Advisor will, in the name of the Fund, place orders
for the execution of all portfolio transactions 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 in effect from time to time. In
connection with the placement of orders for the execution of portfolio
transactions, the Sub-Advisor will create and maintain all necessary
brokerage records of the Fund in accordance 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 for the periods and in the places required
by Rule 31a-2 under the 1940 Act. When placing orders with brokers and
dealers, the Sub-Advisor shall seek to obtain the most favorable price
and execution available for the Fund, and in placing such orders the
Sub-Advisor may consider a number of factors, including, without
limitation, the overall direct net economic result to the Fund
(including commissions, which may not be the lowest available but
ordinarily should not be higher than the generally prevailing
competitive range), the financial strength and stability of the
broker, the efficiency with which the transaction will be effected,
the ability to effect the transaction at all where a large block is
involved and the availability of the broker or dealer to stand ready
to execute possibly difficult transactions in the future. The
Sub-Advisor is specifically authorized, to the extent authorized by
law (including, without limitation, Section 28(e) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), to pay a
broker or dealer who provides research services to the Sub-Advisor an
amount of commission for effecting a portfolio transaction in excess
of the amount of commission another broker or dealer would have
charged for effecting such transaction, in recognition of such
additional research services rendered by the broker or dealer, but
only if the Sub-Advisor determines in good faith that the excess
commission is reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer viewed in terms of
the particular transaction or the Sub-Advisor's overall
responsibilities with respect to discretionary accounts that it
manages, and that the Fund derives or will derive a reasonably
significant benefit from such research services. The Sub-Advisor will
present a written report to the Board of Trustees of the Trust, at
least quarterly and at such other times as reasonably requested by the
Board of Trustees, indicating total brokerage expenses, actual or
imputed, as well as the services obtained in consideration for such
expenses, broken down by broker-dealer and containing such information
as the Board of Trustees reasonably shall request.
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d. The Sub-Advisor may execute standard account documentation,
agreements, contracts and other documents (collectively, the "Account
Documents") as the Sub-Advisor may be requested by brokers, dealers,
counterparties and other persons in connection with the Sub-Advisor's
management of the Fund Assets, provided that the Advisor and the
Trust's Board of Trustees first authorize the Sub-Advisor to execute
Account Documents. In such respect, and only for this limited purpose,
the Sub-Advisor shall act as the agent and/or attorney-in-fact of the
Trust and/or the Advisor.
e. The Advisor recognizes that, subject to the provisions of
Section 2c, Xxxxxxx Investor Services, Inc. or its successor ("SIS"),
an affiliate of the Sub-Advisor, may act as the regular broker for the
Fund so long as it is lawful for it so to act and that SIS may be a
major recipient of brokerage commissions paid by the Fund. SIS may
effect securities transactions for the Fund only if (i) the
commissions, fees or other remuneration received or to be received by
it are reasonable and fair compared to the commissions, fees or other
remuneration received by other brokers in connection with comparable
transactions involving similar securities being purchased or sold on a
securities exchange during a comparable period of time and (ii) the
Trustees, including a majority of those Trustees who are not
interested persons, have adopted procedures pursuant to Rule 17e-1
under the 1940 Act for determining the permissible level of such
commissions.
f. The Advisor understands that (i) when orders to purchase or
sell the same security on identical terms are placed by more than one
of the funds and/or other advisory accounts managed by the Sub-Advisor
or its affiliates, the transactions generally will be executed as
received, although a fund or advisory account that does not direct
trades to a specific broker ("free trades") usually will have its
order executed first, (ii) although all orders placed on behalf of the
Fund will be considered free trades, having an order placed first in
the market does not necessarily guarantee the most favorable price,
and (iii) purchases will be combined where possible for the purpose of
negotiating brokerage commissions, which in some cases might have a
detrimental effect on the price or volume of the security in a
particular transaction as far as the Fund is concerned.
g. The Sub-Advisor may enter into arrangements with other persons
affiliated with the Sub-Advisor for the provision of certain personnel
and facilities to the Sub-Advisor to better enable it to fulfill its
duties and obligations under this Agreement.
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h. In the event of any reorganization or other change in the
Sub-Advisor, its investment principals, supervisors or members of its
investment (or comparable) committee, the Sub-Advisor shall give the
Advisor and 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.
i. The Sub-Advisor will bear its expenses of providing services
to the Fund pursuant to this Agreement except such expenses as are
undertaken by the Advisor or the Trust.
j. The Sub-Advisor will manage the Fund Assets and the investment
and reinvestment of such assets so as to seek to comply with the
provisions of the 1940 Act and with Subchapter M of the Internal
Revenue Code of 1986, as amended.
3. COMPENSATION OF THE SUB-ADVISOR.
a. As compensation for the services to be rendered and duties
undertaken hereunder by the Sub-Advisor, the Advisor will pay to the
Sub-Advisor a monthly fee equal on an annual basis to 0.50% of the
first $150 million of the average daily net assets of the Combined
Funds, and 0.45% of such average daily net assets in excess of $150
million.
b. "Combined Funds," for purposes of this Section 3, means the
combined assets of the Fund and the Touchstone Growth & Income Fund of
the Touchstone Series Trust, to which the Sub-Advisor also acts as an
investment advisor.
c. The fee of the Sub-Advisor hereunder shall be computed and
accrued daily and paid monthly. If the Sub-Advisor serves in such
capacity for less than the whole of any period specified in this
Section 3a, the fee to the Sub-Advisor shall be prorated. For purposes
of calculating the Sub-Advisor's fee, the daily value of the Combined
Funds shall be computed by the same method as the Trust and the
Touchstone Series Trust use, respectively, to compute the net asset
value of each such Fund for purposes of purchases and redemptions of
shares thereof.
d. The Sub-Advisor reserves the right to waive all or a part of
its fees hereunder.
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4. ACTIVITIES OF THE SUB-ADVISOR. It is understood that the Sub-Advisor
may perform investment advisory services for various other clients, including
other investment companies. Furthermore, it is understood that the Sub-Advisor
may give advice, and take action, with respect to its other clients that may
differ from the advice given, or the time and nature of the action taken, with
respect to the Fund. The Sub-Advisor will report to the Board of Trustees of the
Trust (at regular quarterly meetings and at such other times as such Board of
Trustees reasonably shall request) (i) the financial condition and prospects of
the Sub-Advisor, (ii) the nature and amount of transactions affecting the Fund
that involve the Sub-Advisor and affiliates of the Sub-Advisor, (iii)
information regarding any potential conflicts of interest arising by reason of
its continuing provision of advisory services to the Fund and to its other
accounts, and (iv) such other information as the Board of Trustees shall
reasonably request regarding the Fund, the Fund's performance, the performance
of other comparable accounts to whom the Sub-Advisor provides services and the
plans of, and the capability of, the Sub-Advisor with respect to providing
future services to the Fund and its other accounts. The Sub-Advisor agrees, on
an ongoing basis, to notify the Advisor of any change in the individual(s)
responsible for day-to-day management of the Fund and any material change in the
investment strategies employed by the Sub-Advisor in managing the Fund. At least
annually, the Sub-Advisor shall report to the Trustees the total number and type
of such other accounts and the approximate total asset value thereof (but not
the identities of the beneficial owners of such accounts). The Sub-Advisor
agrees to submit to the Trust a statement defining its policies with respect to
the allocation of investment opportunities among the Fund and its other clients.
It is understood that the Sub-Advisor may become interested in the
Trust as a shareholder or otherwise.
The Sub-Advisor has supplied to the Advisor and the Trust copies of its
Form ADV with all exhibits and attachments thereto (including the Sub-Advisor's
statement of financial condition) and will hereafter supply to the Advisor,
promptly upon the preparation thereof, copies of all amendments or restatements
of such document.
Nothing in this Agreement shall prevent the Sub-Advisor, any parent,
subsidiary or affiliate, or any director or officer thereof, from acting as
investment advisor for any other person, firm, or corporation, and shall not in
any way limit or restrict the Sub-Advisor or any of its directors, officers,
stockholders or employees from buying, selling or trading any securities or
commodities for its or their own account or for the account of others for whom
it or they may be acting, if such activities will not adversely affect or
otherwise impair the performance by the Sub-Advisor of its duties and
obligations under this Agreement. The Sub-Advisor will (i) supply to the
Advisor, upon the execution of this Agreement, with a true copy of its currently
effective Code of Ethics and policies regarding xxxxxxx xxxxxxx and (ii)
thereafter supply to Advisor copies of any amendments to or restatements of such
Code of Ethics or xxxxxxx xxxxxxx policies. The Sub-Advisor agrees to provide
the Advisor, on a quarterly basis, a report with respect to material violations
of the Sub-Advisor's Code of Ethics or xxxxxxx xxxxxxx policies by portfolio
managers who have responsibility for managing the Fund or a written statement
indicating that no such violations have occurred during the quarter. In
addition, the Sub-Advisor agrees to provide to the Advisor such other
information concerning violations of its Code of Ethics or xxxxxxx xxxxxxx
policies to the same extent that it provides such information to the Boards of
Directors of its proprietary mutual funds. The parties agree to be bound by the
provisions of Rule 17j-1 under the 1940 Act as it may be amended to the extent
that the provisions of the Rule are stricter than the provisions of this
paragraph.
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5. PROVISION OF INFORMATION BY THE ADVISOR. To facilitate the Sub-Advisor's
fulfillment of its obligations under this Agreement, the Advisor agrees (i)
promptly to provide the Sub-Advisor with all amendments or supplements to the
Trust's registration statements, its Agreement and Declaration of Trust, and its
By-Laws, (ii) on an ongoing basis, to notify the Sub-Advisor expressly in
writing of each change in the fundamental and nonfundamental investment policies
of the Fund, (iii) to provide or cause to be provided to the Sub-Advisor on an
ongoing basis such assistance as may reasonably be requested by the Sub-Advisor
in connection with its activities under this Agreement, including, without
limitation, information concerning the Fund, its available funds, or funds that
may reasonably become available for investment, and information as to the
general condition of the Fund's affairs, (iv) to provide or cause to be provided
to the Sub-Advisor on an ongoing basis such information as is reasonably
requested by the Sub-Advisor for performance by the Sub-Advisor of its
obligations under this Agreement and the Sub-Advisor shall not be in breach of
any term of this Agreement or be deemed to have acted negligently if such
alleged breach or negligent act is the result of the Advisor's failure to
provide or cause to be provided such requested information and the Sub-Advisor's
reliance on the information most recently furnished to the Sub-Advisor, and (v)
promptly to provide the Sub-Advisor with any guidelines and procedures
applicable to the Sub-Advisor or the Fund adopted from time to time by the Board
of Trustees of the Trust and all amendments thereto.
6. USE OF NAMES. Neither the Advisor nor the Trust shall use the name of
the Sub-Advisor in any prospectus, sales literature or other material relating
to the Advisor or the Trust in any manner not approved in advance by the
Sub-Advisor; provided, however, that the Sub-Advisor will approve all uses of
its name which merely refer in accurate terms to its appointment hereunder or
which are required by the SEC or a state securities commission; and provided
further, that in no event shall such approval be unreasonably withheld. The
Sub-Advisor shall not use the name of the Advisor or the Trust in any material
relating to the Sub-Advisor in any manner not approved in advance by the Advisor
or the Trust, as the case may be; provided, however, that the Advisor and the
Trust shall each approve all uses of their respective names which merely refer
in accurate terms to the appointment of the Sub-Advisor hereunder or which are
required by the SEC or a state securities commission; and, provided further,
that in no event shall such approval be unreasonably withheld. Upon termination
of this Agreement, the Advisor and the Trust shall immediately cease to use the
name of the Sub-Advisor.
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7. LIMITATION OF LIABILITY OF THE SUB-ADVISOR. Absent willful misfeasance,
bad faith, gross negligence, or reckless disregard of obligations or duties
hereunder on the part of the Sub-Advisor, the Sub-Advisor shall not be subject
to liability to the Advisor, the Trust or to any shareholder in the Fund 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. The Sub-Advisor shall not be liable to the Advisor or the
Trust for any loss suffered as a consequence of any action or inaction of other
service providers to the Trust, provided such action or inaction of such other
service providers to the Fund is not a result of the willful misconduct, bad
faith or gross negligence in the performance of, or reckless disregard of, the
duties of the Sub-Advisor under this Agreement. As used in this Section 7, the
term "Sub-Advisor" shall include the Sub-Advisor and/or any of its affiliates
and the directors, officers and employees of the Sub-Advisor and/or any of its
affiliates.
8. LIMITATION OF TRUST'S LIABILITY. The Sub-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 Sub-Advisor agrees that (i) the
Trust's obligations to the Sub-Advisor under this Agreement (or indirectly under
the Advisory Agreement) shall be limited in any event to the assets of the Fund
and (ii) the Sub-Advisor shall not seek satisfaction of any such obligation from
the holders of shares of the Fund nor from any Trustee, officer, employee or
agent of the Trust.
9. FORCE MAJEURE. The Sub-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 Sub-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, until December 31, 1999; and it
shall continue thereafter provided that such continuance is
specifically approved by the parties and, in addition, at least
annually by (i) the vote of the holders of a majority of the
outstanding voting securities (as herein defined) of the Fund 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 either the Advisor or the
Sub-Advisor, cast in person at a meeting called for the purpose of
voting on such approval.
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b. This Agreement may be terminated at any time, without payment
of any penalty, (i) by the Advisor, by the Trust's Board of Trustees
or by a vote of the majority of the outstanding voting securities of
the Fund, in any such case upon not less than 60 days' prior written
notice to the Sub-Advisor and (ii) by the Sub-Advisor upon not less
than 60 days' prior written notice to the Advisor and the Trust. This
Agreement shall terminate automatically in the event of its
assignment.
c. If this Agreement is not approved by the favorable vote of a
majority of the outstanding voting securities of the Fund by February
4, 1999, it will terminate as of the close of business on the last day
of such period.
d. This Agreement will also terminate upon written notice to the
other party that the other party is in material breach of this
Agreement, unless the other party in material breach of this Agreement
cures such breach to the reasonable satisfaction of the party alleging
the breach within 30 days after the written notice.
e. 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 the Fund affected by
such change.
f. The terms "affiliated persons," "assignment," "interested
persons" and "majority of the outstanding voting securities" shall
have the meaning set forth for such terms in Section 2(a) of the 1940
Act.
11. SEVERABILITY AND INCORPORATED EFFECT. If any provision of this
Agreement shall become or shall be found to be invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. In addition, where the effect of a requirement of the 1940 Act
reflected in any provision of this Agreement is relaxed by a rule, regulation or
order of the SEC, whether of specific or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
12. NOTICE. Any notices under this Agreement shall be in writing
addressed and delivered personally (or by telecopy) or mailed postage-paid, to
the other party at such address as such other party may designate in accordance
with this paragraph 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 Advisor
for this purpose shall be 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 and that the
address of the Sub-Advisor shall be 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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13. 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, or any applicable provisions of the
1940 Act. To the extent that the laws of the State of Ohio, or any of the
provisions in the Agreement, conflict with applicable provisions of the 1940
Act, the latter shall control. 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 in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
TOUCHSTONE ADVISORS, INC.
Attest:
/s/ Xxxxxxxx X. Xxxxxx BY /s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxxxx X. Xxxxxx President
Title: Chief Compliance Officer
XXXXXXX XXXXXX INVESTMENTS, INC.
Attest:
/s/ Xxxxxxxx X. Xxxxxxxxx BY /s/ Xxxxxxxx Small
Name: Xxxxxxxx X. Xxxxxxxxx Name: Xxxxxxxx Small
Title: AVP Title: Managing Director
600524.02
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