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EXHIBIT (d)(3)
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
THIS INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT is made as of this
_____ day of ________, 2000, between FINANCIAL INVESTORS VARIABLE INSURANCE
TRUST, a Delaware business trust (the "Trust"), on behalf of its FIRST HORIZON
CAPITAL APPRECIATION PORTFOLIO (the "Portfolio") and Delaware Management
Company, a series of Delaware Management Business Trust, a Delaware business
trust organized under the laws of the State of Delaware ("DMC").
WHEREAS, the Trust has been organized to operate as an investment
company registered under the Investment Company Act of 1940, as amended, (the
"1940 Act") and to invest and reinvest the assets of the Portfolio in securities
pursuant to investment objectives and policies for the Portfolio;
WHEREAS, the Trust, under separate agreement has engaged the services
of First Tennessee Bank National Association ("Bank") as a co-investment adviser
to provide or perform various investment advisory, monitoring, statistical,
research, portfolio investment adviser selection, and other services with
respect to the Portfolio as set forth more fully in the Bank's Investment
Advisory and Management Agreement, a form of which is attached hereto as Exhibit
A, (Bank hereinafter being referred to as "Co-Adviser" and DMC hereinafter being
referred to as "Investment Adviser"); and
WHEREAS, the Trust desires to obtain the day-to-day portfolio investment
management services, information, advice, assistance and facilities of the
Investment Adviser with respect to the Portfolio as set forth more fully herein;
NOW, THEREFORE, Trust, on behalf of the Portfolio, and Investment
Adviser agree as follows:
1. Employment of the Investment Adviser. The Trust hereby
employs the Investment Adviser to provide investment advice and to manage the
investment and reinvestment of the Portfolio's assets in the manner set forth in
Section 2A of this Agreement, subject to the direction of the Trustees, for the
period, in the manner, and on the terms hereinafter set forth. The Investment
Adviser hereby accepts such employment and agrees during such period to render
the services and to assume the obligations herein set forth. The Investment
Adviser shall for all purposes herein be deemed to be an independent contractor
and shall, except as expressly provided or authorized (whether herein or
otherwise), have no authority to act or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
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2. Obligation of, and Services to be Provided by, the Investment
Adviser. The Investment Adviser undertakes to provide the services hereinafter
set forth and to assume the following obligations:
A. Investment Advisory Services.
(a) The Investment Adviser shall have overall responsibility
for the day-to-day management and investment of the
Portfolio's assets and securities portfolio subject to and
in accordance with the investment objectives and policies
of the Portfolio, and any directions which the Trustees
and officers of the Trust may issue to the Investment
Adviser from time to time, and shall perform the following
services: (i) provide or cause to be provided investment
research and credit analysis concerning the Portfolio's
investments, (ii) conduct or cause to be conducted a
continual program of investment of the Portfolio's assets,
(iii) place or cause to be placed orders for all purchases
and sales of the investments made for the Portfolio, and
(iv) maintain or cause to be maintained the books and
records required in connection with its duties hereunder.
(b) The Investment Adviser shall advise the Trustees of the
Trust regarding overall investment programs and strategies
for the Portfolio, revision of such programs as necessary,
and shall monitor and report periodically to the Trustees
concerning the implementation of such programs and
strategies.
(c) The Investment Adviser, with the prior approval of the
Trustees (and the shareholders to the extent required by
applicable law) as to particular appointments, shall be
permitted to (i) engage one or more persons or companies
("Sub-Advisers"), which may have full investment
discretion to make all determinations with respect to the
investment and reinvestment of all or any portion of the
Portfolio's assets and the purchase and sale of all or any
portion of the Portfolio securities, subject to the terms
and conditions of this Agreement and the written agreement
to be executed with any Sub-Adviser; and (ii) take such
steps as may be necessary to implement such appointment.
(d) The Investment Adviser will coordinate its activities with
those of the Co-Adviser and will provide to the Co-Adviser
such information regarding the Investment Adviser's
investment management activities to the Portfolio as the
Co-Adviser may reasonably request in order to enable the
Co-Adviser to perform its services on behalf of the
Portfolio under the Co-Adviser Agreement.
B. Provision of Information Necessary for Preparation of
Securities Registration Statements, Amendments and Other
Materials.
The Investment Adviser will make available and provide such
financial, accounting, statistical and other information
related to its duties and responsibilities hereunder as
required by the Trustees and necessary for the preparation of
registration statements, reports and other documents required
by federal and state securities laws and such other
information as the Trustees may
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reasonably request for use by the Trust and its distributor
for the underwriting and distribution of the Portfolio's
shares.
C. Other Obligations and Services.
The Investment Adviser agrees to make available its officers
and employees to the Trustees and officers of the Trust and to
the Co-Adviser for consultation and discussions regarding the
investment advisory activities of the Investment Adviser for
the Portfolio. The Investment Adviser will also coordinate its
activities, to the extent necessary, with the activities of
the custodian, transfer agent, distributor, administrator and
pricing agent insofar as their respective activities relate to
the duties of the Investment Adviser hereunder, and will
provide to such service providers of the Portfolio such
information as they may reasonably request in order to perform
their services on behalf of the Portfolio.
3. Covenants by Investment Adviser. The Investment Adviser
covenants with the Trust that with respect to the services provided to the
Portfolio it:
(a) will comply with all applicable provisions of the 1940 Act
and applicable rules and regulations of the Securities and
Exchange Commission ("SEC") and will in addition conduct
its activities under this Agreement in accordance with the
investment objective, policies and limitations contained
the current registration statement of the Portfolio;
(b) will not make loans to any person for the purpose of
purchasing or carrying Portfolio shares, or make loans to
the Portfolio or the Trust;
(c) will not purchase shares of the Portfolio or the Trust for
its own investment account;
(d) will maintain all books and records with respect to the
securities transactions of the Portfolio and furnish the
Trustees such periodic and special reports as the Trustees
may request with respect to the Portfolio;
(e) will treat confidentially and as proprietary information
of the Trust all records and other information relative to
the Trust and the Portfolio and prior, present or
potential shareholders (other than any information which
Investment Adviser may have obtained about shareholders
from other business relationships with such shareholders),
and will not use such records and information for any
purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to and
approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld and will
be deemed granted where the Investment Adviser may be
exposed to civil or criminal contempt proceedings for
failure to comply, when
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requested to divulge such information by duly constituted
authorities, when so requested by the Trust or when
otherwise required or permitted by law);
(f) will immediately notify the Trust and the Co-Adviser of
the occurrence of any event which would disqualify
Investment Adviser or any Sub-Adviser from serving as
investment adviser of an investment company; and
(g) will determine that all information furnished to the Trust
or the Co-Adviser by it pursuant to this Agreement is
accurate in all material respects.
4. Transaction Procedures. All investment transactions on behalf of the
Portfolio will be compensated by payment to or delivery by the custodian for the
Portfolio duly appointed by the Trustees of the Trust (the "Custodian"), or such
approved depositories or agents duly appointed by the Trustees and as may be
designated by the Custodian in writing, as custodian for the Portfolio, of all
cash and/or securities due to or from the Portfolio, and the Investment Adviser
shall not have possession or custody thereof or any responsibility or liability
with respect thereto. The Investment Adviser effecting transactions on behalf of
the Portfolio shall advise the Custodian and the Co-Adviser of all investment
orders for the Portfolio placed by it with brokers, dealers, banks and other
parties ("Brokers"). The Trustees shall issue, or cause to be issued, to the
Custodian such instructions as may be appropriate in connection with the
settlement of any transaction initiated by the Investment Adviser. The Portfolio
shall be responsible for all custodial arrangements and the payment of all
custodial charges and fees, and, upon the giving of proper instructions to the
Custodian, the Investment Adviser shall have no responsibility or liability with
respect to custodian arrangements or the acts, omissions or other conduct of the
Custodian, except that it shall be the responsibility of the Investment Adviser
to take appropriate action if the Custodian fails properly to confirm execution
of the instructions to the Investment Adviser and the Co-Adviser in a written
form duly agreed upon by the Custodian, the Investment Adviser and the
Co-Adviser.
5. Execution and Allocation of Portfolio Brokerage. The Investment
Adviser shall place, subject to the limitations contained in this paragraph 5,
on behalf of the Portfolio, orders for the execution of the Portfolio's
securities transactions. The Investment Adviser is authorized by the Trust to
take any action, including the purchase or sale of securities for the account of
the Portfolio, (a) that is not in contravention of (i) any investment
restrictions set forth in the 1940 Act and the rules thereunder; (ii) specific
instructions adopted by the Trustees and communicated to the Investment Adviser;
(iii) the investment objectives, policies and restrictions of the Portfolio as
set forth in the Trust's current registration statement, as amended from time to
time; or (iv) instructions from the Trustees to the Investment Adviser, and (b)
which would not have the effect of causing the Trust to fail to qualify or to
cease to qualify as a regulated investment company under the Internal Revenue
Code of 1986, as amended, or any succeeding statute.
The Investment Adviser may place orders pursuant to its investment
determinations for the Portfolio either directly with the issuer or with any
Brokers. In placing orders with any Broker, the Investment Adviser will consider
the experience and skill of a Broker's securities traders as well as the
Broker's financial responsibility and administrative efficiency. The Investment
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Adviser will attempt to obtain the best price and the most favorable execution
of its orders with any Brokers; however, in so doing, the Investment Adviser may
consider, subject to applicable law, the research, statistical, and related
brokerage services provided or to be provided by such Broker to the Portfolio or
the other accounts for which the Investment Adviser exercises investment
discretion. A commission paid to such Brokers may be higher than that which
another Broker would have charged for effecting the same transaction, provided
that the Investment Adviser determines in good faith that such commission is
reasonable in relation to the value of the brokerage and research services
provided by such Broker when viewed in terms of either the particular
transaction or the overall responsibilities of the Investment Adviser with
respect to the accounts as to which it exercises investment discretion. It is
understood that the Investment Adviser has not adopted a formula for selection
of Brokers for the execution of the Portfolio's investment transactions. On
occasions when the Investment Adviser deems the purchase or sale of a security
to be in the best interest of the Portfolio as well as other clients, the
Investment Adviser, to the extent permitted by applicable laws and regulations,
may, but shall be under no obligation to, aggregate the securities to be sold or
purchased in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of the securities
so purchased or sold, as well as expenses incurred in the transaction, will be
made by the Investment Adviser in the manner it considers to be the most
equitable and consistent with its fiduciary obligations to the Portfolio and to
such other clients.
The Investment Adviser will not execute any Portfolio transactions for
the account of the Portfolio with a Broker which is an "affiliated person" (as
defined in the 0000 Xxx) of the Trust, the Trust's distributor, the Investment
Adviser or the Co-Adviser except in accordance with applicable laws, rules,
regulations or interpretations thereof and effective exemption orders issued by
the SEC pursuant to the 1940 Act without the prior written approval of the
Trustees. The Trust agrees to provide the Investment Adviser with a list of
brokers and dealers that are "affiliated persons" of the Trust. The Investment
Adviser likewise agrees to furnish to the Trust and the Co-Adviser a list of
Brokers which are "affiliated persons" of the Investment Adviser. In no instance
will Portfolio securities be purchased from or sold to the Trust's principal
distributor, Investment Adviser, Co-Adviser or any affiliate thereof, except to
the extent permitted by an exemption order issued by the SEC or by applicable
law.
The Investment Adviser shall render regular reports to the Trustees and
the Co-Adviser of the total brokerage business placed by it with respect to the
Trust and the manner in which the allocation of such brokerage has been
accomplished.
6. Expenses of the Portfolio. The Portfolio or Trust will pay, or will
enter into arrangements that require third parties to pay, all expenses other
than those expressly assumed by the Investment Adviser herein, which expenses
payable by the Portfolio or Trust shall include:
(a) Expenses of all audits by independent public accountants;
(b) Expenses of the Co-Adviser, transfer agent, registrar,
dividend disbursing agent and shareholder recordkeeping
services;
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(c) Expenses of custodial services including recordkeeping
services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value
of the Portfolio's net assets;
(e) Salaries and other compensation of any of its executive
officers or employees, if any, who are not officers,
directors, stockholders or employees of the Investment
Adviser, the administrator or the distributor;
(f) Taxes levied against the Portfolio;
(g) Brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for the
Portfolio;
(h) Costs, including the interest expense, of borrowing money;
(i) Costs and/or fees incident to Trustees and shareholder
meetings of the Trust and the Portfolio, the preparation
and mailings of prospectuses and reports of the Portfolio
to its existing shareholders, the filing of reports with
regulatory bodies, the maintenance of the Portfolio's
legal existence, and the registration of shares with
federal and state securities authorities;
(j) Legal fees in connection with the representation of the
Trust and/or Portfolio, including the legal fees related
to the registration and continued qualification of the
Portfolio's shares for sale;
(k) Costs of printing any share certificates representing
shares of the Portfolio;
(l) Fees and expenses of Trustees who are not affiliated
persons, as defined in the 1940 Act, of the Investment
Adviser, the Co-Adviser, the distributor or any of their
affiliates; and
(m) Its pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or of other insurance
premiums.
7. Activities and Affiliates of the Investment Adviser. The Trustees
acknowledge that Investment Adviser, or one or more of its affiliates, may have
investment responsibilities or render investment advice to or perform other
investment advisory services for other individuals or entities and that
Investment Adviser, its affiliates or any of its or their directors, officers,
agents or employees may buy, sell or trade in any securities for its or their
respective accounts (such individuals, entities and accounts hereinafter
referred to as Affiliated Accounts). Subject to the provisions of paragraph 2
hereof, the Trustees agree that the Investment Adviser or its affiliates may
give advice or exercise investment responsibility and take such other action
with respect to other Affiliated Accounts which may differ from the advice given
or the timing or
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nature of action taken with respect to the Portfolio, provided that Investment
Adviser acts in good faith and in accordance with applicable law or as permitted
by an exemption order issued by the SEC, and provided further, that it is
Investment Adviser's policy to allocate within its reasonable discretion,
investment opportunities to the Portfolio over a period of time on a fair and
equitable basis relative to the Affiliated Accounts, taking into account the
investment objectives and policies of the Portfolio and any specific investment
restrictions applicable thereto. The Trust acknowledges that one or more of the
Affiliated Accounts may at any time hold, acquire, increase, decrease, dispose
of or otherwise deal with positions in investments in which the Portfolio may
have an interest from time to time, whether in transactions which involve the
Portfolio or otherwise. The Investment Adviser shall not have any obligation to
acquire for the Portfolio a position in any investment which any Affiliated
Account may acquire, and the Portfolio shall have no first refusal, coinvestment
or other rights in respect of any investment, either for the Portfolio or
otherwise.
8. Compensation of the Investment Adviser. (a) For all services
provided to the Portfolio pursuant to this Agreement, the Trust shall pay the
Investment Adviser, and the Investment Adviser agrees to accept as full
compensation therefor, an investment advisory fee, payable as soon as
practicable after the last day of each month, calculated using an annual rate of
0.70% of the average daily net assets of the Portfolio for the first $50 million
of such assets, and 0.65% on average daily net assets of the Portfolio in excess
of $50 million (the "Annual Rate"). The monthly investment advisory fee to be
paid by the Trust to the Investment Adviser shall be determined as of the close
of business on the last business day of each month by multiplying one-twelfth of
the Annual Rate by the Average Portfolio Net Assets (hereinafter defined),
calculated monthly as of such day.
(b) For purposes of this paragraph 8, the "Average Portfolio
Net Assets" shall be calculated monthly as of the last
business day of each month and shall mean the sum of the
net assets of the Portfolio calculated each business day
during the month divided by the number of business days in
the month (such net assets to be determined as of the
close of business each business day and computed in the
manner set forth in the Declaration of Trust of the
Trust).
9. Proxies. The Trustees will vote all proxies solicited by or with
respect to the issuers of securities in which assets of the Portfolio may be
invested from time to time, unless the Trustees delegate such right to the
Investment Adviser, at which time the Trustees shall provide DMC with a
certified resolution authorizing DMC to vote such proxies.
10. Liabilities of the Investment Adviser.
(a) The Investment Adviser will not be liable for any loss
suffered by the Portfolio or the Trust as the result of
any error of judgment or mistake of law in connection with
its performance of this Agreement; provided, however, that
the Investment Adviser shall be liable to the Portfolio
and the Trust for any loss resulting from (i) a breach of
fiduciary duty with respect to the receipt of compensation
for services; (ii) willful misfeasance, bad faith or gross
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negligence in, or reckless disregard by the Investment
Adviser of, the performance of its obligations or duties
under this Agreement; or (iii) any material breach of any
of its covenants contained in this Agreement.
(b) No provision of this Agreement shall be construed to
protect any Trustee or officer of the Trust, or the
Investment Adviser, from liability in violation of
Sections 17(h) and (i) of the 1940 Act.
11. Renewal, Amendment and Termination.
(a) This Agreement shall become effective on the date first
written above and shall remain in force for a period of
two (2) years from such date and from year to year
thereafter but only so long as such continuance is
specifically approved at least annually (i) by the vote of
a majority of the Trustees who are not interested persons
of the Portfolio, the Co-Adviser or the Investment
Adviser, cast in person at a meeting called for the
purpose of voting on such approval and by a vote of the
Board of Trustees or (ii) by the vote of a majority of the
outstanding voting securities of the Portfolio. The
aforesaid provision that this Agreement may be continued
"annually" shall be construed in a manner consistent with
the 1940 Act and the rules and regulations thereunder.
(b) This Agreement may be amended at any time, but only by
written agreement between the Trust and the Investment
Adviser, which amendment is subject to the approval of the
Trustees and, if applicable, the shareholders of the Trust
in the manner required by the 1940 Act, subject to any
applicable exemption order of the SEC modifying the
provisions of the 1940 Act with respect to approval of
amendments to this Agreement.
(c) This Agreement:
(i) may at any time be terminated without the payment of
any penalty either by vote of the Trustees or by
vote of a majority of the outstanding voting
securities of the Portfolio, on sixty (60) days'
written notice to the Investment Adviser;
(ii) shall immediately terminate in the event of its
assignment; and
(iii) may be terminated by the Investment Adviser on sixty
(60) days' written notice to the Trust.
(d) As used in this Section 11, the terms "assignment",
"interested person" and "vote of a majority of the
outstanding voting securities" shall have the meanings set
forth in the 1940 Act and the rules and regulations
thereunder,
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subject to any applicable orders of exemption or
other interpretations issued by the SEC.
12. Books and Records. (a) The Trustees shall provide to the
Investment Adviser copies of the Trust's most recent prospectus, statement of
additional information, supplement, and post-effective amendment which relate to
any class of shares representing interests in the Portfolio.
(b) In compliance with the requirements of Rule 31a-3 of the
rules promulgated under the 1940 Act ("Rules"), the
Investment Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and
further agrees to surrender promptly to the Trust any such
records upon the Trust's request. The Investment Adviser
further agrees to preserve for the periods prescribed by
Rule 31a-2, the records required to be maintained by the
Investment Adviser hereunder pursuant to Rule 31a-1 of the
Rules.
13. Notices. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed given, if delivered
personally, on the day delivered or if mailed, by certified or registered mail,
postage prepaid, return receipt requested, three (3) days after placement in the
United States mail, or national courier service (e.g. UPS, Fed Ex, Airborne
Express), upon actual receipt as documented by such courier, to the addresses
below:
If to Trust: Financial Investors Variable Insurance Trust
c/o Xxxxxxx X. Xxxx, Secretary
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Investment Adviser: Delaware Management Company
Attn: Xxxxxxx X. Xxxxxxxx, Esq., General Counsel
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
14. 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 shall not be affected thereby.
15. Limitation on Liability. Investment Adviser is hereby expressly put
on notice of the limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations assumed by the Portfolio
pursuant to this Agreement shall be limited in all cases to
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the Portfolio and its assets. Investment Adviser agrees that it shall not seek
satisfaction of any such obligation from the shareholders or any individual
shareholder of the Portfolio, nor from the Trustees or any individual Trustee of
the Portfolio.
16. Governing Law. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Tennessee without giving effect to the choice of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as of the day and year first written above.
FINANCIAL INVESTORS INSURANCE TRUST
By:
-------------------------------
Secretary
DELAWARE MANAGEMENT COMPANY
By:
-------------------------------
By:
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EXHIBIT A
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
THIS INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT is made as of this
____ day of _______, 2000, between FINANCIAL INVESTORS VARIABLE INSURANCE TRUST,
a Delaware business trust (the "Trust"), on behalf of its FIRST HORIZON CAPITAL
APPRECIATION PORTFOLIO (the "Portfolio") and First Tennessee Bank National
Association ("Bank").
WHEREAS, the Trust has been organized to operate as an investment
company registered under the Investment Company Act of 1940, as amended, (the
"1940 Act") and to invest and reinvest the assets of the Portfolio in securities
pursuant to investment objectives and policies for the Portfolio; and
WHEREAS, the Trust, under separate agreement (the "Investment Advisory
and Management Agreement"), has engaged the services of Delaware Management
Company as co-investment adviser to the Portfolio to provide day-to-day
investment management of the Portfolio's assets and securities, to conduct a
continuous program of investment of the Portfolio's assets, and to provide other
advisory services as outlined in the Investment Advisory and Management
Agreement (DMC hereinafter being referred to as "Investment Adviser" and Bank
hereinafter being referred to as "Co-Adviser"); and
WHEREAS, the Trust desires to obtain the services, information, advice,
assistance and facilities of an investment adviser and to have an investment
adviser provide or perform for it various investment advisory, monitoring,
statistical, research, investment adviser selection and counseling and other
services with respect to the Portfolio as set forth more fully herein, but
exclusive of day-to-day investment management services;
NOW, THEREFORE, the Trust, on behalf of the Portfolio, and the
Co-Adviser agree as follows:
1. Employment of the Co-Adviser. The Trust hereby employs the
Co-Adviser to provide investment advisory services in the manner set forth in
Section 2A of this Agreement, subject to the direction of the Trustees, for the
period, in the manner, and on the terms hereinafter set forth. The Co-Adviser
hereby accepts such employment and agrees during such period to render the
services and to assume the obligations herein set forth. The Co-Adviser shall
for all purposes herein be deemed to be an independent contractor and shall,
except as expressly provided or authorized (whether herein or otherwise), have
no authority to act or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. Obligations of, and Services to be Provided by, the
Co-Adviser. The Co-Adviser undertakes to provide the services hereinafter set
forth and to assume the following obligations:
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A. Investment Advisory Services.
(a) The Co-Adviser will provide the Trust with research,
analyses and recommendations with respect to the investment
objective, guidelines for and risk characteristics of the
Portfolio.
(b) The Co-Adviser will monitor the investment and management
activities of the Investment Adviser relative to the
Portfolio, including, but not limited to, purchase and sale
transactions following settlement thereof, and report to the
Trustees on compliance by the Investment Adviser with the
investment objective and policies of the Portfolio, any
directions which the Trustees and officers of the Trust may
issue to the Investment Adviser from time to time and the
requirements of the 1940 Act and all applicable rules and
regulations of the Securities and Exchange Commission ("SEC")
with respect to the Portfolio. In performing its monitoring
services under this sub-section, the Co-Adviser may rely,
among other things, upon reports, data and information
furnished to it by the Investment Adviser, custodian or other
service providers to the Portfolio.
(c) The Co-Adviser will make recommendations with respect to
the engagement and termination of investment advisers and
sub-advisers for the Portfolio and provide research, analyses
and recommendations on qualified candidates to perform the
investment advisory and, if applicable, sub-advisory duties
and responsibilities for the day-to-day management of a
continuous investment program for the Portfolio and the
related functions to sustain that role.
(d) The Co-Adviser will perform or obtain research and
analysis on the investment performance of the Investment
Adviser, or other investment advisers or sub-advisers
(collectively, the "Advisers") with respect to the Portfolio
and comparisons of its absolute and relative performance to
relevant indices and investment universes.
(e) The Co-Adviser will determine and recommend allocation of
assets between multiple active Advisers at such time that the
assets of the Portfolio reach such size that multiple active
Advisers are warranted.
(f) The Co-Adviser may make presentations or reports on behalf
of the Investment Adviser, or other Advisers, at the request
of the Investment Adviser or such other Advisers in meetings
and other settings where the presence of a representative of
any such investment adviser is needed or requested but is
unable to attend. Such meetings and settings may include, but
are not limited to, (i) Board of Trustee meetings, (ii)
meetings with broker-dealers, and (iii) meetings with other
channels of distribution. Such meetings shall not include
regulatory meetings.
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(g) The Co-Adviser will coordinate its activities with the
Investment Adviser and the activities of the Investment
Adviser or other Advisers, with the Portfolio's transfer
agent, administrator, custodian and independent accountants.
B. Provision of Information Necessary for Preparation of
Securities Registration Statements, Amendments and Other
Materials.
The Co-Adviser will make available and provide such financial,
accounting, statistical and other information related to its
duties and responsibilities hereunder as required by the
Trustees and necessary for the preparation of registration
statements, reports and other documents required by federal
and state securities laws and such other information as the
Trustees may reasonably request for use by the Trust and its
distributor for the underwriting and distribution of the
Portfolio's shares.
C. Other Obligations and Services.
The Co-Adviser agrees to make available its officers and
employees to the Trustees and officers of the Trust for
consultation and discussions regarding the activities of the
Investment Adviser and the Co-Adviser's duties hereunder and
their activities with respect to the Portfolio.
3. Covenants by Co-Adviser. The Co-Adviser covenants with the
Trust that, with respect to the services provided to the Portfolio, it:
(a) will comply with all applicable provisions of the 1940 Act
and applicable rules and regulations of the Securities and
Exchange Commission ("SEC") and will in addition conduct
its activities under this Agreement in accordance with the
Portfolio's current registration statement and applicable
regulations of the Office of the Comptroller of the
Currency pertaining to the investment advisory activities
of national banks which are applicable to the Co-Adviser;
(b) will not make loans to any person for the purpose of
purchasing or carrying Trust or Portfolio shares, or make
loans to the Trust or the Portfolio;
(c) will not purchase shares of the Trust or the Portfolio for
its own investment account;
(d) will maintain all books and records with respect to its
duties set forth herein, and furnish the Trustees such
periodic and special reports as the Trustees may request
with respect to the Portfolio;
(e) will treat confidentially and as proprietary information
of the Trust all records and other information relative to
the Trust and the Portfolio and prior, present or
potential shareholders (other than any information which
Co-Adviser may
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have obtained about shareholders from other business
relationships with such shareholders), and will not use
such records and information for any purpose other than
performance of its responsibilities and duties hereunder
(except after prior notification to and approval in
writing by the Trust, which approval shall not be
unreasonably withheld and may not be withheld and will be
deemed granted where the Co-Adviser may be exposed to
civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly
constituted authorities, when so requested by the Trust or
when otherwise required or permitted by law);
(f) will, to the best of its knowledge and ability,
immediately notify the Trust of the occurrence of any
event which would disqualify Co-Adviser or the Investment
Adviser from serving as investment adviser of an
investment company; and
(g) will determine that all information furnished to the Trust
by the Co-Adviser pursuant to this Agreement is accurate
in all material respects.
4. Expenses of the Portfolio. The Portfolio or Trust will pay,
or will enter into arrangements that require third parties to pay, all expenses
other than those expressly assumed by the Co-Adviser herein, which expenses
payable by the Portfolio or Trust shall include:
(a) Expenses of all audits by independent public accountants;
(b) Expenses of Investment Adviser, transfer agent, registrar,
dividend disbursing agent and shareholder recordkeeping
services;
(c) Expenses of custodial services including recordkeeping
services provided by the custodian;
(d) Expenses of obtaining quotations for calculating the value
of the Portfolio's net assets;
(e) Salaries and other compensation of any of its executive
officers or employees, if any, who are not officers,
directors, stockholders or employees of the Investment
Adviser, the Co-Adviser, the Administrator or the
Distributor;
(f) Taxes levied against the Portfolio;
(g) Brokerage fees and commissions in connection with the
purchase and sale of portfolio securities for the
Portfolio;
(h) Costs, including the interest expense, of borrowing money;
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(i) Costs and/or fees incident to Trustees and shareholder
meetings of the Trust and the Portfolio, the preparation
and mailings of prospectuses and reports of the Portfolio
to its existing shareholders, the filing of reports with
regulatory bodies, the maintenance of the Portfolio's
legal existence, and the registration of shares with
federal and state securities authorities;
(j) Legal fees, including the legal fees related to the
registration and continued qualification of the
Portfolio's shares for sale;
(k) Costs of printing any share certificates representing
shares of the Portfolio;
(l) Fees and expenses of Trustees who are not affiliated
persons, as defined in the 1940 Act, of the Co-Adviser,
the Investment Adviser, the Distributor or any of their
affiliates; and
(m) Its pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or of other insurance
premiums.
5. Activities and Affiliates of the Co-Adviser. The Trustees
acknowledge that the Co-Adviser, or one or more of its affiliates, may have
investment responsibilities or render investment advice to or perform other
investment advisory services for other individuals or entities and that the
Co-Adviser, its affiliates or any of its or their directors, officers, agents or
employees may buy, sell or trade in any securities for its or their respective
accounts (such individuals, entities and accounts hereinafter referred to as
"Affiliated Accounts"). Subject to the provisions of paragraph 2 hereof, the
Trustees agree that the Co-Adviser or its affiliates may give advice or exercise
investment responsibility and take such other action with respect to other
Affiliated Accounts which may differ from the advice given or the timing or
nature of action taken with respect to the Portfolio, provided that the
Co-Adviser acts in good faith and in accordance with applicable law or as
permitted by an exemption order issued by the SEC, and provided further, that,
as applicable to the Portfolio, it is the Co-Adviser's policy to allocate within
its reasonable discretion, investment opportunities to the Portfolio over a
period of time on a fair and equitable basis relative to the Affiliated
Accounts, taking into account the investment objectives and policies of the
Portfolio and any specific investment restrictions applicable thereto. The Trust
acknowledges that one or more of the Affiliated Accounts may at any time hold,
acquire, increase, decrease, dispose of or otherwise deal with positions in
investments in which the Portfolio may have an interest from time to time,
whether in transactions which involve the Portfolio or otherwise. The Co-Adviser
shall not have any obligation to acquire for the Portfolio a position in any
investment which any Affiliated Account may acquire, and the Portfolio shall
have no first refusal, co-investment or other rights in respect of any
investment, either for the Portfolio or otherwise.
6. Compensation of the Co-Adviser.
(a) For all services provided to the Portfolio pursuant to
this Agreement, the Trust shall pay the Co-Adviser, and the
Co-Adviser agrees to accept as full
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compensation therefor, an investment advisory fee, payable as
soon as practicable after the last day of each month,
calculated using an annual rate of 0.15% of the average daily
net assets of the Portfolio (the "Annual Rate"). The monthly
investment advisory fee to be paid by the Trust to the
Co-Adviser shall be determined as of the close of business on
the last business day of each month by multiplying one-twelfth
of the Annual Rate by the Average Portfolio Net Assets
(hereinafter defined), calculated monthly as of such day.
(b) For purposes of this paragraph 6, the "Average Portfolio
Net Assets" shall be calculated monthly as of the last
business day of each month and shall mean the sum of the net
assets of the Portfolio calculated each business day during
the month divided by the number of business days in the month
(such net assets to be determined as of the close of business
each business day and computed in the manner set forth in the
Declaration of Trust of the Trust).
7. Proxies. The Trustees will vote all proxies solicited by or
with respect to the issuers of securities in which assets of the Portfolio may
be invested from time to time, unless the Trustees delegate such right to the
Investment Adviser.
8. Liabilities of the Co-Adviser.
(a) The Co-Adviser will not be liable for any loss suffered by
the Portfolio or the Trust as the result of any error of
judgment or mistake of law in connection with its
performance of this Agreement; provided, however, that the
Co-Adviser shall be liable to the Portfolio and the Trust
for any loss resulting from (i) a breach of fiduciary duty
with respect to the receipt of compensation for services;
(ii) willful misfeasance, bad faith or gross negligence
in, or reckless disregard by the Co-Adviser of, the
performance of its duties and obligations under this
Agreement; or (iii) any material breach of any of its
covenants contained in this Agreement.
(b) No provision of this Agreement shall be construed to
protect any Trustee or officer of the Trust, or the
Co-Adviser, from liability in violation of Sections 17(h)
and (i) of the 1940 Act.
9. Renewal, Amendment and Termination.
(a) This Agreement shall become effective on the date first
written above and shall remain in force for a period of
two (2) years from such date and from year to year
thereafter but only so long as such continuance is
specifically approved at least annually (i) by the vote of
a majority of the Trustees who are not interested persons
of the Portfolio, the Investment Adviser or the
Co-Adviser, cast in person at a meeting called for the
purpose of voting on such approval and by a vote of the
Board of Trustees or (ii) by the vote of a majority of the
outstanding voting securities of the Portfolio. The
aforesaid
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provision that this Agreement may be continued "annually"
shall be construed in a manner consistent with the 1940
Act and the rules and regulations thereunder.
(b) This Agreement may be amended at any time, but only by
written agreement between the Trust and the Co-Adviser,
which amendment is subject to the approval of the Trustees
and the shareholders of the Trust in the manner required
by the 1940 Act, subject to any applicable exemption order
of the SEC modifying the provisions of the 1940 Act with
respect to approval of amendments to this Agreement.
(c) This Agreement:
(i) may at any time be terminated without the payment of
any penalty either by vote of the Trustees or by
vote of a majority of the outstanding voting
securities of the Portfolio, on sixty (60) days'
written notice to the Co-Adviser;
(ii) shall immediately terminate in the event of its
assignment; and
(iii) may be terminated by the Co-Adviser on sixty (60)
days' written notice to the Trust.
(d) As used in this Section 9, the terms "assignment",
"interested person" and "vote of a majority of the
outstanding voting securities" shall have the meanings set
forth in the 1940 Act and the rules and regulations
thereunder, subject to any applicable orders of exemption
issued by the SEC.
10. Books and Records.
(a) The Trustees shall provide to the Co-Adviser copies of the
Trust's most recent prospectus and statement of additional
information (as each may be amended or supplemented from time
to time) which relate to any class of shares representing
interests in the Portfolio.
(b) In compliance with the requirements of Rule 3la-3 of the
rules promulgated under the 1940 Act ("Rules"), the Co-Adviser
hereby agrees that all records which it maintains for the
Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any such records upon the
Trust's request. The Co-Adviser further agrees to preserve for
the periods prescribed by Rule 3la-2, the records required to
be maintained by the Co-Adviser hereunder pursuant to Rule
3la-1 of the Rules.
11. Notices. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed given, if
delivered personally, on the day delivered or if
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mailed, by certified or registered mail, postage prepaid, return receipt
requested, three (3) days after placement in the United States mail, to the
addresses below:
If to Trust: Financial Investors Variable Insurance Trust
c/o Xxxxxxx X. Xxxx, Secretary
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx Xxxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to Co-Adviser: C. Xxxxxxx Xxxxx, III
c/o: First Tennessee Bank National Association
0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
With a copy to: Xxxxxx Xxxxx, Esq.
First Tennessee Bank National Corporation
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
12. 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 shall not be affected thereby.
13. Limitation on Liability. Co-Adviser is hereby expressly put on
notice of the limitation of shareholder liability as set forth in the
Declaration of Trust and agrees that obligations assumed by the Portfolio
pursuant to this Agreement shall be limited in all cases to the Portfolio and
its assets. Co-Adviser agrees that it shall not seek satisfaction of any such
obligation from the shareholders or any individual shareholder of the Portfolio,
nor from the Trustees or any individual Trustee of the Portfolio.
14. Governing Law. To the extent that state law has not been
preempted by the provisions of any law of the United States heretofore or
hereafter enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws of the State
of Tennessee without giving effect to the choice of laws provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, as of the day and year first written above.
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FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By:
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Secretary
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
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