AMENDED AND RESTATED SUBADVISORY AGREEMENT
THE PHOENIX EDGE SERIES FUND
This Amended and Restated Subadvisory Agreement (this "Agreement") is
entered into as of this 13th day of February , 2003, by and between Phoenix
Variable Advisors, Inc., a Delaware corporation (the "Adviser") and
Massachusetts Financial Services Company, a company organized under the laws of
the State of Delaware, doing business as MFS Investment Management and having a
place of business located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (the
"Subadviser").
Recitals
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The Phoenix Edge Series Fund (the "Fund") is a diversified open-end
investment company of the series type registered under the Investment Company
Act of 1940 (the "Act"), and is subject to the rules and regulations promulgated
thereunder. The Adviser and Subadviser have entered into that certain
Subadvisory Agreement dated October 29, 2001 (the "Existing Agreement") wherein
Subadviser assumed responsibility for the day-to-day management of the following
series of the Fund: Phoenix-MFS Investors Growth Stock Series (the "Old
Series"), Phoenix-MFS Investors Trust Series, and, Phoenix-MFS Value Series
(hereafter collectively referred to as the "Initial Series").
On December 10, 2002, the Executive Committee of the Fund approved a
plan of reorganization whereby inter alia the Phoenix-Xxx Xxxxxx Focus Equity
Series and the Phoenix-MFS Investors Growth Stock Series (collectively, the
"Merging Series") will be merged into the Phoenix-Janus Growth Series (the
"Surviving Series") on or about February 14, 2003, subject to shareholder
approval. In accordance with those certain letter agreements dated December 31,
2002, the services of the subadvisers with respect to each Merging Series will
be terminated upon consummation of the merger. In accordance with that certain
partial termination agreement also dated December 31, 2002, the Adviser has
terminated the services of Janus Capital Management LLC ("Janus"), as subadviser
to the Surviving Series, effective February 13, 2003. As more particularly
described below, Adviser intends to engage the Subadviser as the subadviser to
the Surviving Series as of February 13, 2003 whereupon the Subadviser shall
provide day-to-day management of the Surviving Series in accordance with the
revised registration statement for the Fund and those undertakings attached
hereto and made a part hereof as Schedule A. On or about February 14, 2003, upon
consummation of the aforementioned merger, the name of the Surviving Series will
be changed to the Phoenix-MFS Investors Growth Stock Series. The Board of
Trustees of the Fund ratified the foregoing actions at their regular meeting
held on February 10, 2003.
The parties desire to amend and restate the Existing Agreement in order
to reflect their mutual understandings and agreements. Pursuant to the
Securities and Exchange Commission's ("SEC") exemptive order dated August 6,
2002, Release No. 25693 (the "Order"), Adviser has been granted the authority,
subject to the approval of the Fund's Board of Trustees, to enter into
subadvisory agreements with subadvisors, materially amend existing subadvisory
agreements, and approve new subadvisory agreements with existing subadvisors in
cases where the subadvisory agreement has been terminated as a result of an
"assignment", in each case without such subadvisory agreement being approved by
the shareholders of the applicable series. The Adviser has used the powers
pursuant to said Order, permitting the Adviser to replace Janus with Subadviser
as subadviser for the Surviving Series.
NOW, THEREFORE, the Existing Agreement is hereby amended and restated
so as to reflect the following agreements:
1. Employment as a Subadviser. The Adviser, being duly authorized, hereby
employs the Subadviser to invest and reinvest the assets of the Initial
Series and the Surviving Series (collectively, the "Series") on the
terms and conditions set forth herein. The services of the Subadviser
hereunder are not to be deemed exclusive; the Subadviser may render
services to others and engage in other activities that do not conflict
in any material manner with the Subadviser's performance hereunder.
2. Acceptance of Employment; Standard of Performance. The Subadviser
accepts its employment as a subadviser to the Adviser and agrees to
make investment decisions for the Series in accordance with the
provisions of this Agreement.
3. Services of Subadviser.
(a) The Subadviser shall provide the services set forth
herein and in Schedule A attached hereto and made a part
hereof. In providing management services to the Series,
the Subadviser shall be subject to the investment
objectives, policies and restrictions of the Fund as
they apply to the Series and as set forth in the Fund's
then current Prospectus and Statement of Additional
Information (as the same may be modified from time to
time), and to the Fund's Agreement and Declaration of
Trust, to the investment and other restrictions set
forth in the Act and in the Securities Act of 1933, as
amended; and to the supervision and direction of the
Adviser, who in turn is subject to the supervision and
direction of the Board of Trustees of the Fund.
Notwithstanding anything herein to the contrary, the
Subadviser shall provide day-to-day management of the
Surviving Series in accordance with the revised
registration statement for the Fund and those
undertakings attached hereto and made a part hereof as
Schedule A. The Subadviser will keep the Fund and the
Adviser informed of developments materially affecting
the Fund, and will, on its own initiative, furnish the
Series and the Adviser from time to time with whatever
information the Sub-adviser believes is reasonably
appropriate for this purpose.
(b) Subject at all times to the limitations set forth in
subparagraph 3(a) above, the Subadviser shall have full
authority at all times with respect to the management of
the Series, including, but not limited to, authority to
give written or oral instructions to various
broker/dealers, banks or other agents; to bind and
obligate the Series to and for the carrying out of
contracts, arrangements, or transactions which shall be
entered into by the Subadviser on the Series' behalf
with or through such broker/dealers, banks or other
agents; to direct the purchase and sale of any
securities; and generally to do and take all action
necessary in connection with the Series, or considered
desirable by the Subadviser with respect thereto. The
Subadviser may maintain uninvested cash balances in the
Series as it shall deem reasonable without incurring any
liability for the payment of interest thereon.
4. Expenses. The Subadviser shall furnish at its own expense for the
following:
(a) Office facilities, including office space, furniture and
equipment utilized by its employees, in the fulfillment
of Subadviser's responsibilities hereunder;
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(b) Personnel necessary to perform the functions required to
manage the investment and reinvestment of each Series'
assets (including those required for research,
statistical and investment work), and to fulfill the
other functions of the Subadviser hereunder; and,
(c) The Subadviser need not provide personnel to perform, or
pay the expenses of the Adviser for, services
customarily performed for an open-end management
investment company by its national distributor,
custodian, financial agent, transfer agent, auditors and
legal counsel.
5. Transaction Procedures. All transactions for the Series will be
consummated by payment to, or delivery by, the Custodian(s) from time
to time designated by the Fund (the "Custodian"), or such depositories
or agents as may be designated by the Custodian pursuant to its
agreement with the Fund (the "Custodian Agreement"), of all cash and/or
securities due to or from the Series. The Subadviser shall not have
possession or custody of such cash and/or securities or any
responsibility or liability with respect to such custody. The
Subadviser shall advise the Custodian and confirm in writing or by
confirmed electronic transmission to the Fund all investment orders for
the Series placed by it with brokers and dealers at the time and in the
manner set forth in the Custodian Agreement and in Schedule B hereto
(as amended from time to time). The Fund shall issue to the Custodian
such instructions as may be appropriate in connection with the
settlement of any transaction initiated by the Subadviser. The Fund
shall be responsible for all custodial arrangements and the payment of
all custodial charges and fees, and, upon giving proper instructions to
the Custodian, the Subadviser shall have no responsibility or liability
with respect to custodial arrangements or the acts, omissions or other
conduct of the Custodian.
6. Allocation of Brokerage. The Subadviser shall have authority and
discretion to select brokers and dealers to execute Series transactions
initiated by the Subadviser, and to select the markets on or in which
the transactions will be executed.
A. In placing orders for the sale and purchase of Series securities
for the Fund, the Subadviser's primary responsibility shall be to seek
the best execution of orders at the most favorable prices. However,
this responsibility shall not obligate the Subadviser to solicit
competitive bids for each transaction or to seek the lowest available
commission cost to the Fund, so long as the Subadviser reasonably
believes that the broker or dealer selected by it can be expected to
obtain "best execution" on the particular transaction and determines in
good faith that the commission cost is reasonable in relation to the
value of the brokerage and research services (as defined in Section
28(e)(3) of the Securities Exchange Act of 1934) provided by such
broker or dealer to the Subadviser, viewed in terms of either that
particular transaction or of the Subadviser's overall responsibilities
with respect to its clients, including the Fund, as to which the
Subadviser exercises investment discretion, notwithstanding that the
Fund may not be the direct or exclusive beneficiary of any such
services or that another broker may be willing to charge the Fund a
lower commission on the particular transaction.
B. Subject to the requirements of paragraph A above, the Adviser
shall have the right to request that transactions giving rise to
brokerage commissions, in an amount to be agreed upon by the Adviser
and the Subadviser, shall be executed by brokers and dealers that
provide brokerage or research services to the Fund or that will be of
value to the Fund in the management
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of its assets, which services and relationship may, but need not, be
of direct or exclusive benefit to the Series. In addition, subject to
paragraph A above, the applicable Conduct Rules of the National
Association of Securities Dealers, Inc. and other applicable law, the
Fund shall have the right to request that transactions be executed by
brokers and dealers by or through whom sales of shares of the Fund are
made.
C. On occasions when the Subadviser deems the purchase or sale of a
security, commodity or other asset to be in the best interest of the
Series as well as other clients of the Subadviser, the Subadviser, to
the extent permitted by applicable law and regulations may, but shall
be under no obligation to, aggregate the securities, commodities or
other assets to be sold or purchased in order to obtain the most
favorable price or lower brokerage commissions and best execution. In
such event, allocation of the securities, commodities or other assets
so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Subadviser in the manner the
Subadviser considers to be the most equitable and consistent with its
fiduciary obligations to the Series and to such other clients.
7. Fees for Services. The compensation of the Subadviser for its services
under this Agreement shall be calculated and paid by the Adviser in
accordance with the attached Schedule C. Pursuant to the Investment
Advisory Agreement between the Fund and the Adviser, the Adviser is
solely responsible for the payment of fees to the Subadviser.
8. Limitation of Liability. The Subadviser shall not be liable for any
error of judgment, mistake of law, or for any loss suffered by the
Adviser, the Fund, the Series or their shareholders, in connection with
the matters to which this Agreement relates, provided, however, that
such error, mistake or loss does not constitute a breach of the
investment objectives, policies and restrictions applicable to the
Series and that any such error, mistake or loss, shall not have
resulted from the Subadviser's willful misfeasance, bad faith or gross
negligence in the performance of, or from the reckless disregard of its
obligations hereunder.
9. Confidentiality. Subject to the duty of the Subadviser to comply with
applicable law, including any demand of any regulatory or taxing
authority having jurisdiction, the parties hereto shall treat as
confidential all information pertaining to the Series and the actions
of the Subadviser and the Fund in respect thereof.
10. Assignment. This Agreement shall terminate automatically in the event
of its assignment, as that term is defined in Section 2(a)(4) of the
Act. The Subadviser shall notify the Adviser in writing sufficiently in
advance of any proposed change of control, as defined in Section
2(a)(9) of the Act, as will enable the Adviser to consider whether an
assignment as defined in Section 2(a)(4) of the Act will occur and to
take the steps it deems necessary.
11. Representations, Warranties and Agreements of the Subadviser. The
Subadviser represents, warrants and agrees that as of October 29, 2001:
A. It is registered as an "investment adviser" under the Investment
Advisers Act of 1940 ("Advisers Act").
B. It will maintain the records and information required by Rule 31a-1
under the Act respecting its activities with respect to the Series, and
such other records with respect thereto
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relating to the services the Subadviser provides under this Agreement
as may be required in the future by applicable SEC rules, and shall
retain such information for such times and in such manner as required
by applicable rules, including Rule 31a-2 under the Act.
C. It has a written code of ethics complying with the requirements of
Rule 17j-l under the Act and will provide the Adviser with a copy of
the code of ethics and evidence of its adoption. Subadviser
acknowledges receipt of the written code of ethics adopted by and on
behalf of the Fund (the "Code of Ethics"). The Subadviser will not be
subject to the Code of Ethics of the Fund as long as its code of ethics
complies with the applicable regulatory requirements and the Board of
Trustees of the Trust approves its code of ethics. Within 10 days of
the end of each calendar quarter while this Agreement is in effect, a
duly authorized compliance officer of the Subadviser shall certify to
the Fund and to the Adviser that the Subadviser has complied with the
requirements of Rule 17j-l with respect to the Fund during the previous
calendar quarter and that there has been no violation of its code of
ethics with respect to the Fund, or if such a violation has occurred,
that appropriate action was taken in response to such violation. The
Subadviser shall permit the Fund and Adviser to examine the reports
required to be made by the Subadviser under Rule 17j-l(c)(1) and this
subparagraph.
D. It will use all necessary efforts to manage the Series so that the
Fund will qualify as a regulated investment company under the
provisions of Subchapter M of the Internal Revenue Code ("IRC"), will
satisfy the diversification requirements of Section 817(h) of the IRC,
the provisions of Subchapter M of the IRC applicable to regulated
investment companies, including those which underlie variable
annuities; and, the distribution requirements necessary to avoid
payment of any excise tax pursuant to Section 4982 of the IRC and the
rules and regulations adopted under each such provision, provided,
however, the foregoing representation shall be effective with respect
to the Surviving Series as of February 13, 2003.
E. It will furnish the Adviser a copy of its Form ADV as filed with
the Securities and Exchange Commission.
F. It will be responsible for the preparation and filing of Schedule
13G and Form 13F on behalf of the Series, provided, however, the
foregoing representation shall be effective with respect to the
Surviving Series as of February 13, 2003.
G. It will not, without the Adviser's prior approval, effect any
transactions that would cause the Series at the time of the transaction
to be out of compliance with any of such restrictions or policies.
H. Reference is hereby made to the Declaration of Trust dated
February 18, 1986, establishing the Fund, a copy of which has been
filed with the Secretary of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so
filed or hereafter so filed with the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law. The name Phoenix Edge
Series Fund refers to the Trustees under said Declaration of Fund, as
Trustees and not personally, and no Trustee, shareholder, officer,
agent or employee of the Fund shall be held to any personal liability
in connection with the affairs of the Fund; only the Fund estate under
said Declaration of Trust is liable. Without limiting the generality of
the foregoing, neither the Subadviser nor any of its officers,
directors, partners, shareholders or employees shall, under any
circumstances, have recourse or cause or willingly
5
permit recourse to be had directly or indirectly to any personal,
statutory, or other liability of any shareholder, Trustee, officer,
agent or employee of the Fund or of any successor of the Fund, whether
such liability now exists or is hereafter incurred for claims against
the trust estate.
12. Representations, Warranties and Agreements of the Adviser. The Adviser
represents, warrants and agrees that:
A. It has the power and has taken all necessary action, and has
obtained all necessary licenses, authorizations and approvals, to
execute this Agreement, which constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
B. It is registered as an "investment adviser" under the Advisers
Act.
C. Prior to commencement of the Subadviser's services hereunder, it
will deliver to the Subadviser true and complete copies of the
Prospectus, Statement of Additional Information, and such other
documents or instruments governing the investments and investment
policies and practices of the Series, and during the term of this
Agreement will promptly deliver to the Subadviser true and complete
copies of all documents and instruments supplementing, amending, or
otherwise becoming such Fund Documents before or at the time they
become effective. The Adviser will also provide a list of companies the
securities of which are not to be bought or sold for the Series (such
list shall include each security name, CUSIP number, SEDOL and/or
applicable ticker, if applicable) and a list of affiliated brokers and
underwriters for reporting transactions under applicable provisions of
the Act. Subadviser shall not be obligated to process or undertake any
actions in connection with the information described in this clause
until three business days following its receipt of notice thereof
pursuant to Section 19, below.
D. It will deliver to the Subadviser any limitations imposed upon the
Fund as a result of relevant diversification requirements under the
provisions of Section 817(h) of the Internal Revenue Code of 1986, as
amended.
E. It will furnish or otherwise make available to the Subadviser such
other information relating to the business affairs of the Fund as the
Subadviser at any time, or from time to time, reasonably requests in
order to discharge its obligations hereunder.
13. Reports. The Subadviser shall provide the Adviser such periodic and
special reports as the Adviser requests and the Subadviser consents to
provide, which consent shall not be unreasonably withheld or delayed.
The Subadviser agrees that such records are the property of the Fund,
and shall be made reasonably available for inspections, by the Fund or
to the Adviser as agent of the Fund, and promptly upon request
surrendered to either. The Subadviser is authorized to supply the
Fund's independent accountants, PricewaterhouseCoopers LLP, or any
successor accountant for the Fund, any information that they may
request in connection with the Fund.
14. Proxies. The Subadviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in relation to
the Assets. Unless the Adviser or the Fund gives the Subadviser written
instructions to the contrary, the Subadviser will, in compliance with
the proxy voting procedures of the Series then in effect, and provided
in writing to the Subadviser, vote or abstain from voting, all proxies
solicited by or with respect to the issuers of securities in
6
which assets of the Series may be invested. The Adviser shall cause
the Custodian to forward promptly to the Subadviser all proxies upon
receipt, so as to afford the Subadviser a reasonable amount of time in
which to determine how to vote such proxies. The Subadviser agrees to
provide the Adviser with quarterly proxy voting reports in such form as
the Adviser may request from time to time.
15. Recordkeeping. The Subadviser will assist the recordkeeping agent for
the Fund in determining or confirming the value of any securities or
other assets in the Series for which the recordkeeping agent seeks
assistance from or identifies for review by the Adviser.
16. Amendment. This Agreement may be amended at any time, but only by
written agreement between the Subadviser and the Adviser, which
amendment, other than amendments to Schedules A and B, is subject to
the approval of the Trustees and the Shareholders of the Fund as and to
the extent required by the Act.
17. Effective Date; Term. This Agreement shall become effective on the date
set forth on the first page of this Agreement. Unless terminated as
hereinafter provided, this Agreement shall remain in full force and
effect until November 30, 2003, and thereafter only so long as its
continuance has been specifically approved at least annually by the
Trustees in accordance with Section 15(a) of the Act, and by the
majority vote of the disinterested Trustees in accordance with the
requirements of Section 15(c) thereof.
18. Use of Subadviser's Name. The Adviser and the Fund agree not to refer
to any designation comprised in whole or in part of the names or marks
"Massachusetts Financial Services Company", "MFS Investment Management"
or any other trademark relating to MFS in any advertising or other
document without the prior written consent of the subadviser. Upon
termination of this Agreement, each party shall cease all use of the
other's name as soon as reasonably practicable.
19. Notices. Except as otherwise provided in this Agreement, all notices or
other communications required or permitted to be given hereunder shall
be in writing and shall be delivered or sent by confirmed facsimile or
by pre-paid first class letter post or overnight courier to the
following addresses or to such other address as the relevant addressee
shall hereafter notify for such purpose to the others by notice in
writing and shall be deemed to have been given at the time of delivery.
If to the Adviser: PHOENIX VARIABLE ADVISORS, INC.
One American Row
Hartford, Connecticut
Attention: Xxxxxx Xxxxxx
If to the Subadviser: Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Legal Department
20. Termination. This Agreement may be terminated by either party, without
penalty, immediately upon written notice to the other party in the
event of a breach of any provision thereof by the
7
party so notified, or otherwise, upon sixty (60) days' written notice
to the other party, but any such termination shall not affect the
status, obligations or liabilities of either party hereto to the other
party.
21. Applicable Law. To the extent that state law is not 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 Commonwealth of Massachusetts.
22. Severability. If any term or condition of this Agreement shall be
invalid or unenforceable to any extent or in any application, then the
remainder of this Agreement shall not be affected thereby, and each and
every term and condition of this Agreement shall be valid and enforced
to the fullest extent permitted by law.
PHOENIX VARIABLE ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Title: Xxxxxx X. Xxxxxx
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ACCEPTED:
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: /s/ Xxxx Xxxxxx
----------------------------
Title: Xxxx Xxxxxx, CEO
SCHEDULES: A. Subadviser Functions
B. Operational Procedures
C. Fee Schedule
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SCHEDULE A
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SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of the Series
assets, the Subadviser shall provide, at its own expense:
(a) An investment program for the Series consistent with its
investment objectives based upon the development, review and
adjustment of buy/sell strategies approved from time to time
by the Board of Trustees and Adviser;
(b) Implementation of the investment program for the Series based
upon the foregoing criteria;
(c) Annual reports, in form and substance acceptable to the
Adviser and Subadviser, with respect to foreign custody as
governed by Rule 17f-7 under the Act, and proxy voting
reports.
(d) Quarterly reports, in form and substance acceptable to the
Adviser, with respect to: i) compliance with the Subadviser's
code of ethics; ii) compliance with procedures adopted from
time to time by the Trustees of the Fund relative to
securities eligible for resale under Rule 144A under the
Securities Act of 1933, as amended; iii) diversification of
Series assets in accordance with the then prevailing
prospectus and statement of additional information pertaining
to the Series and governing laws; iv) compliance with
governing restrictions relating to the fair valuation of
securities for which market quotations are not readily
available or considered "illiquid" for the purposes of
complying with the Series limitation on acquisition of
illiquid securities; v) cross transactions conducted pursuant
to Rule 17a-7 under the Act; vi) any and all other reports as
the parties hereto mutually agree; and, vii) the
implementation of the Series investment program, including,
without limitation, analysis of Series performance;
(e) Attendance by appropriate representatives of the Subadviser at
meetings requested by the Adviser or Trustees at such time(s)
and location(s) as mutually agreed upon; and
(f) Participation, overall assistance and support in marketing the
Series, including, without limitation, meetings with pension
fund representatives, broker/dealers who have a sales
agreement with Phoenix Equity Planning Corporation, and other
parties reasonably requested by the Adviser.
(g) This Schedule A is subject to amendment from time to time to
require additional reports as contemplated by Paragraph 13 of
this Agreement.
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SCHEDULE B
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OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow of
information to be supplied to State Street Bank & Trust Company (the
"Custodian"), the custodian for the Fund.
The Subadviser must furnish the Custodian with daily information as to executed
trades, or, if no trades are executed, with a report to that effect, no later
than 5 p.m. (Eastern Standard time) on the day of the trade (confirmation
received from broker). The necessary information can be sent via facsimile
machine to the Custodian. Information provided to the Custodian shall include
the following:
1. Purchase or sale; 2. Security name;
3. CUSIP number (if applicable);
4. Number of shares and sales price per share;
5. Executing broker;
6. Settlement agent;
7. Trade date;
8. Settlement date;
9. Aggregate commission or if a net trade;
10. Interest purchased or sold from interest bearing security;
11. Other fees;
12. Net proceeds of the transaction;
13. Exchange where trade was executed; and
14. Identified tax lot (if applicable).
When opening accounts with brokers for, and in the name of, the Fund, the
account must be a cash account. No margin accounts are to be maintained in the
name of the Fund. Delivery instructions are as specified by the Custodian. The
Custodian and sub-accounting agent will supply the Subadviser daily with a cash
availability report. This will normally be done by confirmed facsimile or
confirmed electronic transmission so that the Subadviser will know the amount
available for investment purposes.
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SCHEDULE C
----------
SUBADVISORY FEE
For services provided to the Fund pursuant to paragraph 3 hereof, the Adviser
will pay to the Subadviser, on or before the 10th day of each month, a fee,
payable in arrears, at the annual rates stated below,:
Rate(s) Breakpoint based on average
------- of all net assets of the three Series
under management
----------------
0.375% $0 - $500 million
0.350% next $400 million
0.325% next $600 million
0.250% Excess over $1.5 billion
The fees shall be prorated for any month during which this Agreement is in
effect for only a portion of the month. In computing the fee to be paid to the
Subadviser, the net asset value of each Series shall be valued as set forth in
the then current registration statement of the Fund. Payment of the monthly
management fee will be accompanied by documentation that verifies the
calculation of such fee.
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