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Exhibit 5(C)
PORTFOLIO ADVISORY AGREEMENT
EMERGING GROWTH PORTFOLIO
SELECT ADVISORS PORTFOLIOS
This PORTFOLIO ADVISORY AGREEMENT is made as of the 30th day of October,
1997, by and between TOUCHSTONE ADVISORS, INC., an Ohio corporation (the
"Advisor"), and Westfield Capital Management Company, Inc., a Massachusetts
corporation (the "Portfolio Advisor").
WHEREAS, the Advisor is an investment advisor registered under the
Investment Advisers Act of 1940, as amended, and has been retained by Select
Advisors Portfolios, a New York trust (the "Trust") registered under the
Investment Company Act of 1940 (the "1940 Act"), to provide investment advisory
services with respect to certain assets of the Emerging Growth Portfolio
(herein the "Portfolio"); and
WHEREAS, the Portfolio Advisor also is an investment advisor registered
under the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Advisor desires to retain the Portfolio Advisor to furnish it
with portfolio management services in connection with the Advisor's investment
advisory activities on behalf of the Portfolio, and the Portfolio Advisor is
willing to furnish such services to the Advisor and the Portfolio;
NOW THEREFORE, in consideration of the terms and conditions hereinafter
set forth, it is agreed as follows:
1. EMPLOYMENT OF THE PORTFOLIO ADVISOR. In accordance with and subject to
the Second Amended and Restated Investment Advisory Agreement between the Trust
and the Advisor, attached hereto as Exhibit A (the "Advisory Agreement"), the
Advisor hereby appoints the Portfolio Advisor to manage the investment and
reinvestment of that portion of the assets of the Portfolio allocated to it by
the Advisor (such portion being herein called the "Portfolio 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 Portfolio 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 Portfolio 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 Portfolio 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 Portfolio.
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2. DUTIES OF THE PORTFOLIO ADVISOR. The Portfolio Advisor will provide
the following services and undertake the following duties:
a. The Portfolio Advisor will manage the investment and
reinvestment of the Portfolio Assets, subject to and in accordance with the
investment objectives, policies and restrictions of the Portfolio and any
directions which the Advisor or the Trust's Board of Trustees may give from
time to time with respect to the Portfolio. In furtherance of the foregoing,
the Portfolio Advisor will make all determinations with respect to the
investment of the Portfolio Assets and the purchase and sale of portfolio
securities and shall take such steps as may be necessary or advisable to
implement the same. The Portfolio 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 Portfolio Advisor
will render regular reports to the Trust's Board of Trustees, to the Advisor
and to RogersCasey Sponsor Services, 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 Portfolio Advisor). Such reports shall be made in such form
and manner and with respect to such matters regarding the Portfolio and the
Portfolio Advisor as the Trust, the Advisor or RogersCasey Sponsor Services,
Inc. shall from time to time request.
b. The Portfolio Advisor shall provide support to the Advisor with
respect to the marketing of the Portfolio, including but not limited to:
(i) permission to use the Portfolio Advisor's name as provided in Section 5,
(ii) permission to use the past performance and investment history of the
Portfolio Advisor as the same is applicable to the Portfolio, (iii) access to
the individual(s) responsible for day-to-day management of the Portfolio for
marketing conferences, teleconferences and other activities involving the
promotion of the Portfolio, subject to the reasonable request of the Advisor,
(iv) permission to use biographical and historical data of the Portfolio
Advisor and individual manager(s), and (v) permission to use the names of those
institutional clients to which the Portfolio Advisor provides investment
management services, subject to receipt of the consent of such clients to the
use of their names.
c. The Portfolio Advisor will, in the name of the Portfolio, 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 Portfolio Advisor
will create and maintain all necessary brokerage records of the Portfolio 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
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and dealers, the Portfolio Advisor's primary objective shall be to obtain the
most favorable price and execution available for the Portfolio, and in placing
such orders the Portfolio Advisor may consider a number of factors, including,
without limitation, the overall direct net economic result to the Portfolio
(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
Portfolio 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 Portfolio 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 Portfolio 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 Portfolio Advisor's overall responsibilities with
respect to discretionary accounts that it manages, and that the Portfolio
derives or will derive a reasonably significant benefit from such research
services. The Portfolio Advisor will present a written report to the Board of
Trustees of the Trust, at least quarterly, 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.
d. In the event of any reorganization or other change in the
Portfolio Advisor, its investment principals, supervisors or members of its
investment (or comparable) committee, the Portfolio 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.
e. The Portfolio Advisor will bear its expenses of providing
services to the Portfolio pursuant to this Agreement except such expenses as
are undertaken by the Advisor or the Trust.
f. The Portfolio Advisor will manage the Portfolio Assets and the
investment and reinvestment of such assets so as to comply with the provisions
of the Investment Company Act of 1940 and with Subchapter M of the Internal
Revenue Code of 1986, as amended.
3. COMPENSATION OF THE PORTFOLIO ADVISOR.
a. As compensation for the services to be rendered and duties
undertaken hereunder by the Portfolio Advisor, the Advisor will pay to the
Portfolio Advisor a
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monthly fee equal on an annual basis to 0.45% of the first $10 million of
the average daily net assets of the Portfolio managed by the Portfolio
Advisor, 0.40% of the average daily net assets of the Portfolio managed by
the Portfolio Advisor in excess of $10 million and up to $50 million and
0.35% of the average daily net assets of the Portfolio managed by the
Portfolio Advisor in excess of $50 million. Such fee shall be computed and
accrued daily. If the Portfolio Advisor serves in such capacity for less
than the whole of any period specified in this Section 3a, the compensation
to the Portfolio Advisor shall be prorated. For purposes of calculating the
Portfolio Advisor's fee, the daily value of the Portfolio's net assets
shall be computed by the same method as the Trust uses to compute the net
asset value of the Portfolio for purposes of purchases and redemptions of
interests thereof.
b. The Portfolio Advisor reserves the right to waive all or a part of
its fees hereunder.
4. ACTIVITIES OF THE PORTFOLIO ADVISOR. It is understood that the
Portfolio Advisor may perform investment advisory services for various other
clients, including other investment companies. The Portfolio 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 Portfolio Advisor, (ii) the nature and
amount of transactions affecting the Portfolio that involve the Portfolio
Advisor and affiliates of the Portfolio Advisor, (iii) information regarding
any potential conflicts of interest arising by reason of its continuing
provision of advisory services to the Portfolio and to its other accounts, and
(iv) such other information as the Board of Trustees shall reasonably request
regarding the Portfolio, the Portfolio's performance, the services provided by
the Portfolio Advisor to the Portfolio as compared to its other accounts and
the plans of, and the capability of, the Portfolio Advisor with respect to
providing future services to the Portfolio and its other accounts. At least
annually, the Portfolio Advisor will provide to the Trustees information
regarding the composite return of such of its other accounts as are comparable,
in investment objective and composition, to the Portfolio. The Portfolio
Advisor agrees to submit to the Trust a statement defining its policies with
respect to the allocation of investment opportunities among the Portfolio and
its other clients.
It is understood that the Portfolio Advisor may become interested in the
Trust as an interest holder or otherwise.
The Portfolio Advisor has supplied to the Advisor and the Trust copies of
its Form ADV with all exhibits and attachments thereto (including the Portfolio
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.
5. USE OF NAMES. Neither the Advisor nor the Trust shall use the name of
the Portfolio 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 Portfolio Advisor; provided, however, that the Portfolio Advisor will
approve all uses of its name which merely refer in accurate terms
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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 Portfolio Advisor shall not use the name
of the Advisor or the Trust in any material relating to the Portfolio 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 Portfolio 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.
6. LIMITATION OF LIABILITY OF THE PORTFOLIO ADVISOR. Absent willful
misfeasance, bad faith, gross negligence, or reckless disregard of obligations
or duties hereunder on the part of the Portfolio Advisor, the Portfolio Advisor
shall not be subject to liability to the Advisor, the Trust or to any holder of
an interest in the Portfolio 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. As used in this
Section 6, the term "Portfolio Advisor" shall include the Portfolio Advisor
and/or any of its affiliates and the directors, officers and employees of the
Portfolio Advisor and/or any of its affiliates.
7. LIMITATION OF TRUST'S LIABILITY. The Portfolio 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 Portfolio Advisor agrees
that (i) the Trust's obligations to the Portfolio Advisor under this Agreement
(or indirectly under the Advisory Agreement) shall be limited, in any event to
the assets of the Portfolio and (ii) the Portfolio Advisor shall not seek
satisfaction of any such obligation from the holders of interests in the
Portfolio nor from any Trustee, officer, employee or agent of the Trust.
8. FORCE MAJEURE. The Portfolio 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 Portfolio Advisor shall take reasonable steps to
minimize service interruptions but shall have no liability with respect thereto.
9. RENEWAL, TERMINATION AND AMENDMENT.
a. This Agreement shall continue in effect, unless sooner terminated
as hereinafter provided, until December 31, 1998; and it shall continue
thereafter provided that such continuance is specifically approved by the
parties and, in addition, at lease annually by (i) the vote of the holders
of a majority of the outstanding voting securities (as herein defined) of
the 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 either the Advisor or the Portfolio
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 Portfolio,
in any such case upon not less than 60 days' prior written notice to the
Portfolio Advisor and (ii) by the Portfolio 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. 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 Portfolio affected by such change.
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.
10. SEVERABILITY. 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.
11. 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 Portfolio Advisor shall be Xxx Xxxxxxxxx Xxxxxx -- 00xx Xxxxx,
Xxxxxx, XX 00000.
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 in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Attest: TOUCHSTONE ADVISORS, INC.
/s/ Xxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President President
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Attest: WESTFIELD CAPITAL MANAGEMENT
COMPANY, INC.
/s/ Xxxx X. Xxxxxxx /s/ C. Xxxxxxx Xxxxxx
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Name: Xxxx X. Xxxxxxx Name: C. Xxxxxxx Xxxxxx
Title: Assistant Vice President Title: Chairman
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