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INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated as of September 9, 1994, by and between
TOUCHSTONE ADVISORS, INC., an Ohio corporation (the "Advisor"), and SELECT
ADVISORS VARIABLE INSURANCE TRUST, a Massachusetts business 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, shares of beneficial in the Trust are divided into separate
series (each, along with any series 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 OF 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
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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
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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 shares of 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 shareholders 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,
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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 Variable Insurance Trust (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
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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
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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.
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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
shareholders of the Trust individually, but bind only the Trust estate.
SELECT ADVISORS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., President
Attest:
/s/ Xxxxxx X Xxxxxxx
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TOUCHSTONE ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. XxXxxxxx, Vice President
Attest:
/s/ Xxxxxx X. Xxxxxxx
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SCHEDULE 1
Emerging Growth Portfolio 0.80%
International Equity Portfolio 0.95%
Balanced Portfolio 0.70%
Income Opportunity 0.65%
Standby Income 0.25%
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