EXHIBIT 23(d)1(8)
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, effective as of the 5th day of December, 2005 (the
"Contract Date") by and between The Phoenix Edge Series Fund, a Massachusetts
business trust (the "Trust") and Phoenix Investment Counsel, Inc., a
Massachusetts corporation (the "Advisor").
WITNESSETH THAT:
1. The Trust hereby appoints the Advisor to act as investment advisor
to the Trust on behalf of the series of the Trust established and designated by
the Board of Trustees of the Trust (the "Trustees") on or before the date
hereof, as listed on attached Schedule A (collectively, the "Existing Series"),
for the period and on the terms set forth herein. The Advisor accepts such
appointment and agrees to render the services described in this Agreement for
the compensation herein provided.
2. In the event that the Trustees desire to retain the Advisor to
render investment advisory services hereunder with respect to one or more
additional series (the "Additional Series"), by agreement in writing, the Trust
and the Advisor may agree to amend Schedule A to include such Additional Series,
whereupon such Additional Series shall become subject to the terms and
conditions of this Agreement.
3. The Advisor shall furnish continuously an investment program for
the Existing Series and any Additional Series which may become subject to the
terms and conditions set forth herein (sometimes collectively referred to as the
"Series") and shall manage the investment and reinvestment of the assets of each
Series, subject at all times to the supervision of the Trustees.
4. The Advisor may delegate its investment responsibilities under
paragraph 3 above with respect to the Series or segments thereof to one or more
persons or companies ("Subadvisor(s)") pursuant to an agreement between the
Advisor, the Trust and any such Subadvisor ("Subadvisory Agreement"). Each
Subadvisory Agreement may provide that the applicable Subadvisor, subject to the
control and supervision of the Board of Trustees and the Advisor, shall have
full investment discretion for the Series, shall make all determinations with
respect to the investment and reinvestment of the assets of each Series assigned
it. Any delegation of duties pursuant to this paragraph shall comply with any
applicable provisions of Section 15 of the Investment Company Act of 1940 (the
"Act"), except to the extent permitted by any exemptive order of the Securities
and Exchange Commission ("SEC") or similar relief. The Advisor shall not be
responsible or liable for the investment merits of any decision by a Subadvisor
to purchase, hold or sell a security for any Series' portfolio.
5. With respect to managing the investment and reinvestment of the
Series' assets, the Advisor shall provide, at its own expense:
(a) Investment research, advice and supervision;
(b) An investment program for each Series consistent with its
investment objectives, policies and procedures;
(c) Implementation of the investment program for each Series
including the purchase and sale of securities;
(d) Implementation of an investment program designed to manage
cash, cash equivalents and short-term investments for a Series
with respect to assets designated from time to time to be
managed by a subadvisor to such Series;
(e) Advice and assistance on the general operations of the Trust;
and
(f) Regular reports to the Trustees on the implementation of each
Series' investment program.
6. The Advisor shall, for all purposes herein, be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust or the Series in
any way or otherwise be deemed an agent of the Trust or of the Series. However,
one or more shareholders, officers, directors or employees of the Advisor may
serve as trustees and/or officers of the Trust, but without compensation or
reimbursement of expenses for such services from the Trust. Nothing herein
contained shall be deemed to require the Trust to take any action contrary to
its Declaration of Trust, as amended (the "Declaration of Trust"), as amended,
restated or supplemented, or any applicable statute or regulation, or to relieve
or deprive the Board of Trustees of its responsibility for and control of the
affairs of the Series.
7. The Advisor shall furnish at its own expense, or pay the expenses
of the Trust, for the following:
(a) Office facilities, including office space, furniture and
equipment;
(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);
(c) Except as otherwise approved by the Board, personnel to serve
without salaries from the Trust as officers or agents of the
Trust. The Advisor need not provide personnel to perform, or
pay the expenses of the Trust for, services customarily
performed for an open-end management investment company by its
national distributor, custodian, financial agent, transfer
agent, registrar, dividend disbursing agent, auditors and
legal counsel;
(d) Compensation and expenses, if any, of the Trustees who are
also full-time employees of the Advisor or any of its
affiliates; and
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(e) Any subadvisor recommended by the Advisor and appointed to act
on behalf of the Trust.
8. All costs and expenses not specifically enumerated herein as
payable by the Advisor shall be paid by the Trust. Such expenses shall include,
but shall not be limited to, all expenses (other than those specifically
referred to as being borne by the Advisor) incurred in the operation of the
Trust and any public offering of its shares, including, among others, interest,
taxes, brokerage fees and commissions, fees of Trustees who are not affiliated
persons of the Advisor (as that term is defined in the Act) or any of its
affiliates, expenses of Trustees' and shareholders' meetings including the cost
of printing and mailing proxies, expenses of Advisor personnel attending Trustee
meetings as required, expenses of insurance premiums for fidelity and other
coverage of the Trust and its personnel, expenses of repurchase and redemption
of shares, expenses of issue and sale of shares (to the extent not borne by its
national distributor under its agreement with the Trust), expenses of printing
and mailing stock certificates representing shares of the Trust, association
membership dues, charges of custodians, transfer agents, dividend disbursing
agents and financial agents, bookkeeping, auditing and legal expenses. The Trust
will also pay the fees and bear the expense of registering and maintaining the
registration of the Trust and its shares with the Securities and Exchange
Commission and registering or qualifying its shares under state or other
securities laws and the expense of preparing and mailing prospectuses and
reports to shareholders. Additionally, if authorized by the Trustees, the Trust
shall pay for extraordinary expenses and expenses of a non-recurring nature
which may include, but not be limited to the reasonable and proportionate cost
of any reorganization or acquisition of assets and the cost of legal proceedings
to which the Trust is a party.
9. The Advisor shall adhere and shall use reasonable efforts to cause
the Trust to adhere to all applicable policies and procedures as adopted from
time to time by the Trustees, including but not limited to the following:
(a) Code of Ethics. The Advisor shall adopt a Code of Ethics
designed to prevent "access persons" (as defined therein in
accordance with Rule 17j-1 under the Investment Company Act of
1940 (the "Investment Company Act")) from engaging in
fraudulent acts or transactions that are, or have the
potential of being viewed as, a conflict of interest, and
shall monitor for compliance with its Code of Ethics and
report any violations to the Trust's Compliance Officer.
(b) Policy with Respect to Brokerage Allocation. The Advisor shall
have full trading discretion in selecting brokers for Series
transactions on a day to day basis so long as each selection
is in conformance with the Trust's Policy with Respect to
Brokerage Allocation. Such discretion shall include use of
"soft dollars" for certain broker and research services, also
in conformance with the Trust's Policy with Respect to
Brokerage Allocation. The Advisor may delegate the
responsibilities under this section to a Subadvisor of a
Series.
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(c) Procedures for the Determination of Liquidity of Assets. It
shall be the responsibility of the Advisor to monitor the
Series' assets that are not liquid, making such determinations
as to liquidity of a particular asset as may be necessary, in
accordance with the Trust's Procedures for the Determination
of Liquidity of Assets. The Advisor may delegate the
responsibilities under this section to a Subadvisor of a
Series.
(d) Policy with Respect to Proxy Voting. In the absence of
specific direction to the contrary and in a manner consistent
with the Trust's Policy with Respect to Proxy Voting, the
Advisor shall be responsible for voting proxies with respect
to portfolio holdings of the Trust. The Advisor shall review
all proxy solicitation materials and be responsible for voting
and handling all proxies in relation to the assets under
management by the Advisor in accordance with such policies and
procedures adopted or approved by each Series'. Unless the
Fund gives the Advisor written instructions to the contrary,
the Advisor will, in compliance with the proxy voting
procedures of the Series then in effect or approved by the
Series, vote or abstain from voting, all proxies solicited by
or with respect to the issuers of securities in which the
assets of the Series may be invested. The Advisor shall cause
the Custodian to forward promptly to the Advisor (or designee)
all proxies upon receipt so as to afford the Advisor a
reasonable amount of time in which to determine how to vote
such proxies. The Advisor agrees to provide the Trust with
quarterly proxy voting reports in such form as the Trust may
request from time to time. The Advisor may delegate the
responsibilities under this section to a Subadvisor of a
Series.
(e) Procedures for the Valuation of Securities. It shall be the
responsibility of the Advisor to fully comply with the Trust's
Procedures for the Valuation of Securities. The Advisor may
delegate the responsibilities under this section to a
Subadvisor of a Series.
10. The Advisor hereby warrants and represents that it will provide the
requisite certifications requested by the chief executive officer and chief
financial officer of the Fund necessary for those named officers to fulfill
their reporting and certification obligations on Forms N-CSR and N-Q as required
under the Xxxxxxxx-Xxxxx Act of 2002.
11. For providing the services and assuming the expenses outlined
herein, the Trust agrees that the Advisor shall be compensated as follows:
(a) The Trust shall pay a monthly fee calculated at an annual rate
as specified in Schedule A. The amounts payable to the Advisor
with respect to the respective Series shall be based upon the
average of the values of the net assets of such Series
excluding the net assets representing capital contributed by
Phoenix Life Insurance Company ("seed money"), as of the close
of business each day, computed in accordance with the Trust's
Declaration of Trust.
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(b) Compensation shall accrue immediately upon the effective date
of this Agreement.
(c) If there is termination of this Agreement with respect to any
Series during a month, the Series' fee for that month shall be
proportionately computed upon the average of the daily net
asset values of such Series for such partial period in such
month.
(d) The Advisor, at its discretion, agrees to reimburse the Trust
for the amount, if any, by which the total operating and
management expenses for any Series (including the Advisor's
compensation, pursuant to this paragraph, but excluding taxes,
interest, costs of portfolio acquisitions and dispositions and
extraordinary expenses), for any "fiscal year" exceed the
level of expenses which such Series is permitted to bear under
the most restrictive expense limitation (which is not waived
by the State) imposed on open-end investment companies by any
state in which shares of such Series are then qualified. Such
reimbursement, if any, will be made by the Advisor to the
Trust within five days after the end of each month. For the
purpose of this subparagraph (d), the term "fiscal year" shall
include the portion of the then current fiscal year which
shall have elapsed at the date of termination of this
Agreement.
12. The services of the Advisor to the Trust are not to be deemed
exclusive, the Advisor being free to render services to others and to engage in
other activities. Without relieving the Advisor of its duties hereunder and
subject to the prior approval of the Trustees and subject farther to compliance
with applicable provisions of the Investment Company Act, as amended, the
Advisor may appoint one or more agents to perform any of the functions and
services which are to be provided under the terms of this Agreement upon such
terms and conditions as may be mutually agreed upon among the Trust, the Advisor
and any such agent.
13. The Advisor shall not be liable to the Trust or to any shareholder
of the Trust for any error of judgment or mistake of law or for any loss
suffered by the Trust or by any shareholder of the Trust in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith, gross negligence or reckless disregard on the part of
the Advisor in the performance of its duties hereunder.
14. It is understood that:
(a) Trustees, officers, employees, agents and shareholders of the
Trust are or may be "interested persons" of the Advisor as
directors, officers, stockholders or otherwise;
(b) Directors, officers, employees, agents and stockholders of the
Advisor are or may be "interested persons" of the Trust as
Trustees, officers, shareholders or otherwise; and
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(c) The existence of any such dual interest shall not affect the
validity hereof or of any transactions hereunder.
15. This Agreement shall become effective with respect to the Existing
Series as of the date stated above, and with respect to any Additional Series,
on the date specified in any amendment to this Agreement reflecting the addition
of each Additional Series in accordance with paragraph 2 (the "Amendment Date").
Unless terminated as herein provided, this Agreement shall remain in full force
and effect until November 30, 2007 with respect to each Existing Series and
until November 30 of the first full calendar year following the Amendment Date
with respect to each Additional Series, and shall continue in full force and
effect for periods of one year thereafter with respect to each Series so long as
(a) such continuance with respect to any such Series is approved at least
annually by either the Trustees or by a "vote of the majority of the outstanding
voting securities" of such Series and (b) the terms and any renewal of this
Agreement with respect to any such Series have been approved by a vote of a
majority of the Trustees who are not parties to this Agreement or "interested
persons" of any such party cast in person at a meeting called for the purpose of
voting on such approval; provided, however, that the continuance of this
Agreement with respect to each Additional Series is subject to its approval by a
"vote of a majority of the outstanding voting securities" of any such Additional
Series on or before the next anniversary of the Contract Date following the date
on which such Additional Series became a Series hereunder .
Any approval of this Agreement by a vote of the holders of a "majority
of the outstanding voting securities" of any Series shall be effective to
continue this Agreement with respect to such Series notwithstanding (a) that
this Agreement has not been approved by a "vote of a majority of the outstanding
voting securities" of any other Series of the Trust affected thereby and (b)
that this Agreement has not been approved by the holders of a "vote of a
majority of the outstanding voting securities" of the Trust, unless either such
additional approval shall be required by any other applicable law or otherwise.
16. The Advisor shall furnish any state insurance commissioner with
such information or reports in connection with the services provided under this
Agreement as the Commissioner may request in order to ascertain whether variable
life insurance or variable annuity operations are being conducted in accordance
with applicable law or regulations. The Trust shall own and shall be open to
inspection, audit and photocopying during regular business hours by the
Trustees, officers, counsel and auditors of the Trust.
17. The Trust may terminate this Agreement with respect to the Trust or
to any Series upon 60 days' written notice to the Advisor at any time, without
the payment of any penalty, by vote of the Trustees or, as to each Series, by a
"vote of the majority of the outstanding voting securities" of such Series. The
Advisor may terminate this Agreement upon 60 days' written notice to the Trust,
without the payment of any penalty. This Agreement shall immediately terminate
in the event of its "assignment".
18. The terms "majority of the outstanding voting securities",
"interested persons" and "assignment", when used herein, shall have the
respective meanings in the Investment Company Act.
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19. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the trust property of
the Trust, as provided in the Declaration of Trust. The execution and delivery
of this Agreement have been authorized by the Trustees and shareholders of the
Trust and signed by the President of the Trust, acting as such, and neither such
authorization by such Trustees and shareholders nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
be binding upon or impose any liability on any of them personally, but shall
bind only the trust property of the Trust as provided in its Declaration of
Trust.
20. This Agreement shall be construed and the rights and obligations of
the parties hereunder enforced in accordance with the laws of the State of
Connecticut.
21. Subject to the duty of the Advisor and the Trust 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 any Additional Series that may be
named, and the actions of the Advisor and the Trust in respect thereof.
22. The Advisor will not advise or act on behalf of the Series in
regards to class action filings, with respect to any securities held in the
Series portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
THE PHOENIX EDGE SERIES FUND
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
PHOENIX INVESTMENT COUNSEL, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Clerk
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SCHEDULE A
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SERIES ANNUAL INVESTMENT ADVISORY FEE
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Phoenix-S&P Dynamic Asset Allocation Series: Moderate 0.40%
Phoenix-S&P Dynamic Asset Allocation Series: Moderate Growth 0.40%
Phoenix-S&P Dynamic Asset Allocation Series: Growth 0.40%
Phoenix-S&P Dynamic Asset Allocation Series: Aggressive Growth 0.40%
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