INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated as of ________________, 1994, by and
between TOUCHSTONE ADVISORS, INC., an Ohio corporation (the "Advisor"), and
SELECT ADVISORS PORTFOLIOS, a New York master trust created pursuant to a
Declaration of Trust dated February 7, 1994, as amended from time to time (the
"Trust").
WHEREAS, the Trust is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended, (the
"1940 Act"); and
WHEREAS, interests in the Trust are divided into separate subtrusts
(each, along with any subtrust which may in the future be established, a
"Portfolio"); and
WHEREAS, the Trust desires to avail itself of the services,
information, advice, assistance and facilities of an investment advisor and to
have an investment advisor perform for it various investment advisory and
research services and other management services; and
WHEREAS, the Advisor is an investment Advisor registered under the
Investment Advisers Act of 1940, as amended, and desires to provide investment
advisory services to the Trust;
NOW THEREFORE, in consideration of the terms and conditions hereinafter
set forth, it is agreed as follows:
1. EMPLOYMENT OF THE ADVISOR. The Trust hereby employs the Advisor to
manage the investment and reinvestment of the assets of each Portfolio subject
to the control and direction of the Trust's Board of Trustees, for the period on
the terms hereinafter set forth. The Advisor hereby accepts such employment and
agrees during such period to render the services and to assume the obligations
herein set forth for the compensation herein provided. The Advisor shall for all
purposes herein be deemed to be independent contractor and shall, except as
expressly provided or authorized (whether herein or otherwise), have no
authority to act for or represent the Trust in any way or otherwise be deemed an
agent of the Trust.
2. OBLIGATIONS AND SERVICES TO BE PROVIDED BY THE ADVISOR. In providing
the services and assuming the obligations set forth herein, the Advisor may, at
its expense, employ one or more subadvisors for any Portfolio. Any agreement
between the Advisor and a subadvisor shall be subject to the renewal,
termination and amendment provisions of paragraph 10 hereof. The Advisor
undertakes to provide the following services and to assume the following
obligations:
a) The Advisor will manage the
investment and reinvestment of the assets of each
Portfolio, subject to and in accordance with the
respective investment objectives and policies of each
Portfolio and any directions which the Trust's Board
of Trustees may issue from time to time. In pursuance
of the foregoing, the Advisor may engage separate
investment advisors ("Portfolio Advisor(s)") to make
all determinations with respect to the investment of
the assets of each Portfolio, to effect the purchase
and sale of portfolio securities and to take such
steps as may be necessary to implement the same. Such
determination and services by each Portfolio Advisor
shall also include determining the manner in which
voting rights, rights to consent to corporate action
and any other rights pertaining to the portfolio
securities shall be exercised. The Advisor shall, and
shall cause each Portfolio Advisor to, render regular
reports to the Trust's Board of Trustees concerning
the Trust's and each Portfolio's investment
activities.
b) The Advisor shall, or shall cause
the respective Portfolio Advisor(s) to place orders
for the execution of all portfolio transactions, in
the name of the respective Portfolio and in
accordance with the policies with respect thereto set
forth in the Trust's registration statements under
the 1940 Act and the Securities Act of 1933, as such
registration statements may be amended from time to
time. In connection with the placement of orders for
the execution of portfolio transactions, the Advisor
shall create and maintain (or cause the Portfolio
Advisors to create and maintain) all necessary
brokerage records for each Portfolio, which records
shall comply with all applicable laws, rules and
regulations, including but not limited to records
required by Section 31(a) of the 1940 Act. All
records shall be the property of the Trust and shall
be available for inspection and use by the Securities
and Exchange Commission (the "SEC"), the Trust or any
person retained by the Trust. Where applicable, such
records shall be maintained by the Advisor (or
Portfolio Advisor) for the periods and in the places
required by Rule 31a-02 under the 1940 Act.
c. In the event of any
reorganization or other change in the Advisor, its
investment principals, supervisors or members of its
investment (or comparable) committee, the Advisor
shall give the Trust's Board of Trustees written
notice of such reorganization or change within a
reasonable time (but not later than 30 days) after
such reorganization or change.
d) The Advisor shall bear its
expenses of providing services to the Trust pursuant
to this Agreement except such expenses as are
undertaken by the Trust. In addition, the Advisor
shall pay the salaries
and fees, if any, of all Trustees, officers and
employees of the Trust who are affiliated persons, as
defined in Section 2(a)(3) of the 1940 Act, of the
Advisor.
e) The Advisor will manage, or will
cause the Portfolio Advisors to manage, the Portfolio
Assets and the investment and reinvestment of such
assets so as to comply with the provisions of the
1940 Act and with Subchapter M of the Internal
Revenue Code of 1986, as amended.
3. EXPENSES. The Trust shall pay the expenses of its operation,
including but not limited to (i) charges and expenses for Trust accounting,
pricing and appraisal services and related overhead, (ii) the charges and
expenses of the Portfolio's auditor's; (iii) the charges and expenses of any
custodian, transfer agent, plan agent, dividend disbursing agent and registrar
appointed by the Trust with respect to the Portfolios; (iv) brokers'
commissions, and issue and transfer taxes, chargeable to the Trust in connection
with securities transactions to which the Trust is a party; (v) insurance
premiums, interest charges, dues and fees for Trust membership in trade
associations and all taxes and fees payable by the Trust to federal, state or
other governmental agencies; (vi) fees and expenses involved in registering and
maintaining registrations of the Trust and/or interests in the Trust with the
SEC, state or blue sky securities agencies and foreign countries, including the
preparation of Prospectuses and Statements of Additional Information for filing
with the SEC; (vii) all expenses of meetings of Trustees and of interest holders
of the Trust and of preparing, printing and distributing prospectuses, notices,
proxy statements and all reports to shareholders and to governmental agencies;
(viii) charges and expenses of legal counsel to the Trust; (ix) compensation of
Trustees of the Trust; (x) the cost of preparing and printing share
certificates; and (xi) interest on borrowed money, if any.
4. COMPENSATION OF THE ADVISOR.
a) As compensation for the services
rendered and obligations assumed hereunder by the
Advisor, the Trust shall pay to the Advisor monthly a
fee that is equal on an annual basis to that
percentage of the average daily net assets of each
Portfolio set forth on Schedule 1 attached hereto
(and with respect to any future Portfolio, such
percentage as the Trust and the Advisor may agree to
from time to time). Such fee shall be computed and
accrued daily. If the Advisor serves as investment
advisor for less than the whole of any period
specified in this Section 4a, the compensation to the
Advisor shall be prorated. For purposes of
calculating the Advisor's fee, the daily value of
each Portfolio's net assets shall be computed by the
same method as the Trust uses to compute the net
asset value of that Portfolio.
b) The Advisor will pay all fees
owing to each Portfolio Advisor, and the Trust shall
not be obligated to the Portfolio Advisors in any
manner with respect to the compensation of such
Portfolio Advisors.
c) The Advisor reserves the right to
waive all or a part of its fee.
5. ACTIVITIES OF THE ADVISOR. The services of the Advisor to the Trust
hereunder are not to be deemed exclusive, and the Advisor shall be free to
render similar services to others. It is understood that the Trustees and
officers of the Trust are or may become interested in the Advisor as
stockholders, officers or otherwise, and that stockholders and officers of the
Advisor are or may become similarly interested in the Trust, and that the
Advisor may become interested in the Trust as a shareholder or otherwise.
6. USE OF NAMES. The Trust will not use the name of the Advisor in any
prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Advisor; except that the Trust may use
such name in any document which merely refers in accurate terms to its
appointment hereunder or in any situation which is required by the SEC or a
state securities commission; and provided further, that in no event shall such
approval be unreasonably withheld. The Advisor will not use the name of the
Trust in any material relating to the Advisor in any manner not approved prior
thereto by the Trust; except that the Advisor may use such name in any document
which merely refers in accurate terms to the appointment of the Advisor
hereunder or in any situation which is required by the SEC or a state securities
commission. In all other cases, the parties may use such names to the extent
that the use is approved by the party named, it being agreed that in no event
shall such approval be unreasonably withheld.
The Trustees of the Trust acknowledge that, in consideration
of the Advisor's assumption of certain organization expenses of the Trust and of
the various Portfolios, the Advisor has reserved for itself the rights to the
name "Select Advisors Portfolios" (or any similar names) and that use by the
Trust of such name shall continue only with the continuing consent of the
Advisor, which consent may be withdrawn at any time, effective immediately, upon
written notice thereof to the Trust.
7. LIMITATION OF LIABILITY OF THE ADVISOR.
a. Absent willful misfeasance, bad faith, gross
negligence, or reckless disregard of obligations or duties hereunder on
the part of the Advisor, the Advisor shall not be subject to liability
to the Trust or to any holder of an interest in any Portfolio for any
act or omission in the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase,
holding or sale of any security. As used in this Section 7, the term
"Advisor" shall include Touchstone Advisors, Inc. and/or any of its
affiliates and the directors, officers and employees of Touchstone
Advisors, Inc. and/or of its affiliates.
b. The Trust will indemnify the Advisor against, and
hold it harmless from, any and all losses, claims, damages, liabilities
or expenses (including reasonable counsel fees and expenses) resulting
from acts or omissions of the Trust. Indemnification shall be made only
after: (i) a final decision on the merits by a court or other body
before whom the proceeding was brought that the Trust was liable for
the damages claimed or (ii) in the absence of such a decision, a
reasonable determination based upon a review of the facts, that the
Trust was liable for the damages claimed, which determination shall be
made by either (a) the vote of a majority of a quorum of Trustees of
the Trust who are neither "interested persons" of the Trust nor parties
to the proceeding ("disinterested non-party Trustees") or (b) an
independent legal counsel satisfactory to the parties hereto, whose
determination shall be set forth in a written opinion. The Advisor
shall be entitled to advances from the Trust for payment of the
reasonable expenses incurred by it in connection with the matter as to
which it is seeking indemnification in the manner and to the fullest
extent that would be permissible under the applicable provisions of the
General Corporation Law of Ohio. The Advisor shall provide to the Trust
a written affirmation of its good faith belief that the standard of
conduct necessary for indemnification under such law has been met and a
written undertaking to repay any such advance if it should ultimately
be determined that the standard of conduct has not been met. In
addition, at least one of the following additional conditions shall be
met: (a) the Advisor shall provide security in form and amount
acceptable to the Trust for its undertaking; (b) the Trust is insured
against losses arising by reason of the advance; or (c) a majority of a
quorum of the Trustees of the Trust, the members of which majority are
disinterested non-party Trustees, or independent legal counsel in a
written opinion, shall have determined, based on a review of facts
readily available to the Trust at the time the advance is proposed to
be made, that there is reason to believe that the Advisor will
ultimately be found to be entitled to indemnification.
8. LIMITATION OF TRUST'S LIABILITY. The Advisor acknowledges that it
has received notice of and accepts the limitations upon the Trust's liability
set forth in its Declaration of Trust. The Advisor agrees that the Trust's
obligations hereunder in any case shall be limited to the Trust and to its
assets and that the Advisor shall not seek satisfaction of any such obligation
from the holders of the interests in any Portfolio nor from any Trustee,
officer, employee or agent of the Trust.
9. FORCE MAJEURE. The Advisor shall not be liable for delays or errors
occurring by reason of circumstances beyond its control, including but not
limited to acts of civil or military authority, national emergencies, work
stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riot, or
failure of communication or power supply. In the event of equipment breakdowns
beyond its control, the Advisor shall take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto.
10. RENEWAL, TERMINATION AND AMENDMENT.
a) This Agreement shall continue in
effect, unless sooner terminated as hereinafter
provided, for a period of twelve months from the date
hereof and it shall continue indefinitely thereafter
as to each Portfolio, provided that such continuance
is specifically approved by the parties hereto and,
in addition, at least annually by (i) the vote of
holders of a majority of the outstanding voting
securities of the affected Portfolio or by vote of a
majority of the Trust's Board of Trustees and (ii) by
the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of
the Advisor, cast in person at a meeting called for
the purpose of voting on such approval.
b) This Agreement may be terminated
at any time, with respect to any Portfolio(s),
without payment of any penalty, by the Trust's Board
of Trustees or by a vote of the majority of the
outstanding voting securities of the affected
Portfolio(s) upon 60 days' prior written notice to
the Advisor and by the Advisor upon 60 days' prior
written notice to the Trust.
c) This Agreement may be amended at
any time by the parties hereto, subject to approval
by the Trust's Board of Trustees and, if required by
applicable SEC rules and regulations, a vote of the
majority of the outstanding voting securities of any
Portfolio affected by such change. This Agreement
shall terminate automatically in the event of its
assignment.
d) The terms "assignment,"
"interested persons" and "majority of the outstanding
voting securities" shall have the meaning set forth
for such terms in the 1940 Act.
11. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
12. MISCELLANEOUS. Each party agrees to perform such further actions
and execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Ohio. The captions, in this Agreement are
included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered inn their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Pursuant to the Trust's Declaration of Trust, dated as of February 7, 1994, the
obligations of this Agreement are not
binding upon any of the Trustees or interestholders of the Trust individually,
but bind only the Trust estate.
SELECT ADVISORS PORTFOLIOS
By ________________________________
Xxxxxx X. Xxxxxxx, Xx., President
Attest:
---------------------------
TOUCHSTONE ADVISORS, INC.
By ________________________________
Xxxx X. XxXxxxxx, Vice President
Attest:
---------------------------
AMENDMENT NO. 1
INVESTMENT ADVISORY AGREEMENT
This Amendment No. 1 to Investment Advisory Agreement is dated as of
May 1, 1997 and amends the Investment Advisory Agreement (the "Advisory
Agreement") dated September 9, 1994 made by and between Touchstone Advisors,
Inc., an Ohio corporation (the "Advisor"), and Select Advisors Portfolios, a New
York master trust created pursuant to a Declaration of Trust dated February 7,
1994 (the "Trust").
WHEREAS, the Advisor acts as investment advisor to the Trust pursuant
to the Advisory Agreement; and in such capacity the Advisor has engaged separate
portfolio advisors for each of the Trust's portfolios; and
WHEREAS, the Trust, by its Board of Trustees, has taken action to
terminate the Trust's Municipal Bond Portfolio and the Portfolio Advisory
Agreement, dated September 9, 1994, presently in effect between the Advisor and
Xxxxxxxxx & Xxxxxx, Portfolio Advisor to such portfolio, each as of the close of
business on April 30, 1997; and
WHEREAS, such Board of Trustees also has taken action to terminate
Portfolio Advisory Agreements presently in effect between the Advisor and Harbor
Capital Management Company, Inc. ("Harbor Capital") and Xxxxxx Xxxxxxxx Capital
Management, Inc. ("Xxxxxx Xxxxxxxx"), each such Portfolio Advisory Agreement
being dated as of September 9, 1994; and
WHEREAS, such Board of Trustees also has taken action to enter into a
Portfolio Advisory Agreement with Op Cap Advisors, a subsidiary of Xxxxxxxxxxx
Capital, a registered investment advisor, under which Op Cap Advisors will act
as Portfolio Advisor to the Trust's Balanced Portfolio, replacing Harbor Capital
and Xxxxxx Xxxxxxxx; and
WHEREAS, the advisory fees to be paid to Op Cap Advisors under such
Portfolio Advisory Agreement will be higher than the fees currently being paid
to Harbor Capital and Xxxxxx Xxxxxxxx under their Portfolio Advisor Agreements;
and
WHEREAS, the trust is agreeable to an increase in the fees being paid
under the Advisory Agreement sufficient to offset the increase in fees to be
paid to Op Cap Advisors, having found that such increased fees are comparable to
the average fees being paid to advisors of balanced portfolios generally.
NOW, THEREFORE, Schedule 1 to the Advisory Agreement is hereby amended,
effective as of the close of business on April 30, 1997, to read as set forth in
Exhibit A to this Amendment, the only changes in such Schedule being an increase
in the advisory fees to be paid by the Balanced Portfolio, from 0.70% to 0.80%
of average daily net assets, and the deletion of the Municipal Bond Portfolio.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered in their names and on their behalf as of the day and year
first above written.
SELECT ADVISORS PORTFOLIO
By:_________________________________
Xxxxxx X. Xxxxxxx, Xx., President
TOUCHSTONE ADVISORS INC.
By:____________________________________
Exhibit A to
Amendment No 1 to Advisory
Agreement
SCHEDULE 1
Emerging Growth Portfolio 0.80%
International Equity Portfolio 0.95%
Growth & Income Portfolio 0.75%
Growth & Income Portfolio II 0.75%
Balanced Portfolio 0.80%
Income Opportunity 0.65%
Bond Portfolio 0.55%
Bond Portfolio II 0.55%
0103544.05
