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EXHIBIT (d)(2)
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 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.
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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:
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.
(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.
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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 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
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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;
(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.
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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, coinvestment 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 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
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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 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.
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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 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 Russell C. Burk, Esq., General Counsel
ALPS Mutual Fund Services, Inc.
370 17th Street, Suite 3100
Denver, Colorado 80202
With a copy to: Lester Woodward, Esq.
Davis, Graham & Stubbs LLP
370 17th Street, Suite 4700
Denver, CO 80202
If to Co-Adviser: C. Douglas Kelso, III
c/o: First Tennessee Bank National Association
4990 Poplar Avenue, Third Floor
Memphis, TN 38117
With a copy to: Adella Heard, Esq.
First Tennessee Bank National Corporation
165 Madison Avenue, Third Floor
Memphis, TN 38103
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.
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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.
FINANCIAL INVESTORS VARIABLE INSURANCE TRUST
By:
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Secretary
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
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