EXHIBIT 99.h.4
AMENDED AND RESTATED
SHAREHOLDER SERVICES AGREEMENT
AMENDED AND RESTATED
SHAREHOLDER SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (this "Agreement") is made
by and between PHOENIX-XXXXXXXX FUNDS, a Delaware business trust (the "Trust"),
and PHOENIX EQUITY PLANNING CORPORATION ("Service Provider"), with respect to
each Series or Fund of the Trust set forth in Appendix A hereto, as may be
amended from time to time (the "Funds"). This Agreement amends and restates that
certain Services Agreement dated as of September 3, 1997 between the Trust and
Service Provider.
WITNESSETH
WHEREAS, the Trust is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust wishes to retain the Service Provider to provide
services to clients of the Service Provider who are shareholders of the Funds,
and the Service Provider is willing to furnish such services:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Service Provider to
provide to the Funds the shareholder services specified in Section 2 of this
Agreement to all clients of the Service Provider that are shareholders of the
Funds. The Service Provider accepts such appointment and agrees to furnish such
shareholder services in return for compensation as provided in Section 6 of this
Agreement. The Service Provider agrees to comply with all relevant provisions of
the 1940 Act and applicable rules and regulations thereunder.
2. Services and Responsibilities on a Continuing Basis. In its capacity
as Service Provider under the terms of this Agreement, the Service Provider
shall be generally responsible for providing shareholder services to
shareholders of the Funds and for interaction with shareholders of the Funds on
behalf of the Trust. The Service Provider may provide services itself or may
cause or arrange for others to provide some or all such services to certain
shareholders (e.g., Service Provider may arrange, at its sole expense, for
certain services to be provided by shareholder's financial intermediary as
opposed to the Service Provider). The shareholder services provided by the
Service Provider hereunder are distinct from services provided by the Service
Provider in any other capacity, such as Transfer Agent or Distributor, pursuant
to separate agreements with the Trust. The shareholder services to be provided
by the Service Provider under this Agreement include the following:
(a) responding to shareholder inquiries;
(b) handling shareholder requests for redemptions of Fund shares
(although the actual processing of redemption on the Trust's books and records
is a function of the Transfer Agent);
(c) assisting shareholders in changing dividend options, account
designations and addresses;
(d) transmitting proxy statements, annual reports, prospectuses and
other correspondence from the Funds to shareholders (including, upon request,
copies, but not originals, of regular correspondence, confirmations or regular
statements of account) where such shareholders hold shares of the Funds
registered in the name of the Service Provider or its nominee; and
(e) providing such other information and assistance to shareholders as
may be reasonably requested by such shareholders.
The Service Provider is under no obligation to, and shall not, provide pursuant
to this Agreement any services with respect to the sale or distribution of
shares of any Fund.
3. Standard of Care. The Service Provider shall be under no duty to
take any action on behalf of the Funds
except as specifically set forth herein or as may be specifically agreed to by
the Service Provider in writing. In the performance of its duties hereunder, the
Service Provider shall be obligated to exercise due care and diligence and to
act in good faith and to use its best efforts. Without limiting the generality
of the foregoing or of any other provision of this Agreement, the Service
Provider shall not be liable for delays or errors or loss of data occurring by
reason of circumstances beyond the Service Provider's control.
4. Confidentiality. The Service Provider agrees on behalf of itself and
its employees to treat confidentially all records and other information relative
to the Funds and the Trust, and all prior, present or potential Shareholders of
the Funds, except after prior notification to, and approval of release of
information in writing by, the Trust, which approval shall not be unreasonably
withheld, and may not be withheld where the Service Provider may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Trust.
5. Independent Contractor. The Service Provider shall, for all purposes
herein, be deemed to be an independent contractor, and shall, unless otherwise
expressly provided and authorized to do so, have no authority to act for or
represent the Trust or the Funds in any way, or in any way be deemed an agent
for the Trust or for the Funds. It is expressly understood and agreed that the
services to be rendered by the Service Provider under the provisions of this
Agreement are not to be deemed exclusive, and the Service Provider shall be free
to render similar or different services to others so long as its ability to
render the services provided for in this Agreement shall not be impaired
thereby.
6. Compensation. As compensation for the services rendered by, and
responsibilities assumed by, the Service Provider during the term of this
Agreement, the Funds will pay to the Service Provider a service fee in an amount
equal to 0.25% per annum of the average daily net asset value of each Fund's
shares held by clients of the Service Provider. The service fee shall be accrued
daily by each of the Funds and paid to the Service Provider on a quarterly
basis.
7. Indemnification.
(a) The Trust agrees to indemnify and hold harmless the Service
Provider from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the Securities Act of
1933, the Securities Exchange Act of 1934, the 1940 Act, and any state and
foreign securities laws, all as amended from time to time [the "Acts"]) and
expenses, including (without limitation) reasonable attorneys fees and
disbursements, arising directly or indirectly from any action or thing which the
Service Provider takes or does or omits to take or do (i) at the request or on
the direction of or in reliance on the advice of the Trust or (ii) upon oral or
written instructions from an officer of the Trust, provided, that the Service
Provider shall not be indemnified against any liability to the Trust or to
shareholders (or any expenses incident to such liability) arising out of the
Service Provider's own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement. The Service
Provider agrees to indemnify and hold harmless the Trust and its officers and
Trustees from all claims and liabilities (including, without limitation,
liabilities arising under the Acts) and expenses, including (without limitation)
reasonable attorneys fees and disbursements, arising directly or indirectly from
any action or thing which the Service Provider takes or does or omits to take or
do which is in violation of this Agreement or not in accordance with
instructions properly given by an officer of the Trust or arising out of the
Service Provider's own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
(b) The Service Provider shall provide such security as is necessary to
prevent unauthorized use of any online computer facilities. The Service Provider
agrees to release, indemnify and hold harmless the Trust, each Fund, Xxxxx
Xxxxxxxx & Associates, Inc., Phoenix Equity Planning Corporation. and Pasadena
National Trust Company from any and all direct or indirect liabilities or losses
resulting from requests, directions, actions or inactions of or by the Service
Provider, its officers, employees or agents regarding the redemption, transfer
or registration of Fund shares for accounts of the Service Provider, its clients
and other shareholders. Principals of the Service Provider will be available to
consult from time to time with Xxxxx Xxxxxxxx & Associates, Inc. concerning
performance of the services contemplated by this Agreement.
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8. Fund Information. No person is authorized to make any
representations concerning any Fund, or shares of any Fund or shareholder
services except in accordance with the terms of this Agreement. Neither the
Service Provider nor its agents will use or distribute, or authorize the use or
distribution of, any statements other than those contained in the Fund's current
Prospectus or Statement of Additional Information or in such supplemental
literature as may be authorized by a Fund, Xxxxx Xxxxxxxx & Associates, Inc. or
Phoenix Equity Planning Corporation.
9. Duration and Termination. This Agreement shall continue until
termination by the Trust or the Service Provider on 30 days' written notice to
the other. This Agreement may be terminated as to one or more of the Funds
without affecting its validity to any other fund as to which it is not
terminated. All notices and other communications hereunder shall be in writing.
10. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought, except that the Trust may amend
Appendix A hereto by giving written notice thereof to the Service Provider.
11. Miscellaneous.
(a) This Agreement embodies the entire agreement and understanding
between the parties thereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof.
(b) The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of California as applicable to contracts between
California residents entered into and to be performed entirely within
California.
(d) If any provision of this Agreement shall be held or made invalid by
a court decision, statute, role or otherwise, the remainder of this Agreement
shall not be affected thereby.
(e) The Service Provider agrees that the Trust's obligations under this
Agreement shall be limited to the Funds and to their assets, and that the
Service Provider shall not seek satisfaction of any such obligation from the
shareholders of the Funds nor from any trustee, officer, employee or agent of
the Trust or the Funds.
(f) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
(g) This Agreement may not be assigned without the mutual consent of
the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year written below.
PHOENIX-XXXXXXXX FUNDS
Date: 6/19/01 By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, Chief Financial Officer
PHOENIX EQUITY PLANNING CORPORATION
Date: 6/19/01 By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Executive Vice President, CFO
and Treasurer
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APPENDIX A
List of Funds subject Shareholder Services Agreement:
1. The Phoenix-Xxxxxxxx Growth Fund
2. The Phoenix-Xxxxxxxx Balanced Return Fund
3. The Phoenix-Xxxxxxxx Nifty Fifty Fund
4. The Phoenix-Xxxxxxxx Small & Mid Cap Growth Fund
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