Exhibit 5(c)
FORM OF INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT made effective as of the ___ day of April, 1997 by and
between Phoenix Duff & Xxxxxx Institutional Mutual Funds (the "Trust"), a
Massachusetts business trust authorized to issue share of beneficial interest
in separate series, and Phoenix Realty Securities, Inc. (the "Adviser"),
a Connecticut corporation.
WITNESSETH THAT:
1. The Trust hereby appoints the Adviser to act as investment adviser to
the Trust on behalf of the Phoenix Real Estate Equity Securities Portfolio (the
"Portfolio" or "Series"), for the period and on the terms set forth herein. The
Adviser 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 Adviser to render
investment advisory services hereunder with respect to one or more additional
series ("Additional Portfolio"), the Trust shall notify the Adviser in writing.
If the Adviser is willing to render such services, it shall notify the Trust in
writing, whereupon such Additional Portfolio shall become subject to the terms
and conditions of this Agreement.
3. The Adviser shall furnish continuously an investment program for the
Portfolio and any Additional Portfolio which may become subject to the terms and
conditions set forth herein (which, together with the Portfolio is sometimes
collectively referred to as the "Portfolio") and shall manage the investment
and reinvestment of the assets of each Portfolio, subject at all times to the
supervision of the Trustees.
4. With respect to managing the investment and reinvestment of the
Portfolio's assets, the Adviser shall provide, at its own expense:
(a) Investment research, advice and supervision;
(b) An investment program for each Portfolio consistent with its
investment objectives;
(c) Implementation of the investment program for each Portfolio including
the purchase and sale of securities;
(d) Regular reports to the Trustees on the implementation of each
Portfolio's investment program; and
(e) Continuous monitoring and evaluation of the performance and investment
style of any subadviser recommended by Adviser and appointed to act on
behalf of the Trust.
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5. The adviser shall, for all purposes herein, be deemed to be an
independent contractor.
6. The Adviser 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 Portfolios' assets (including those
required for research, statistical and investment work);
(c) Personnel to serve without salaries from the Trust as officers or
agents of the Trust. The Adviser 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, auditors and
legal counsel;
(d) compensation and expenses, if any, of the Trustees who are also
full-time employees of the Adviser or any of its affiliates; and
(e) Any subadviser recommended by Adviser and appointed to act on behalf
of the Trust.
7. All costs and expenses not specifically enumerated herein as payable
by the Adviser 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 Adviser) 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 full-time employees
of the Adviser or any of its affiliates, expenses of Trustees' and shareholders'
meetings including the cost of printing and mailing proxies, certain expenses of
insurance premiums for fidelity and other coverage, 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.
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8. Adviser hereby undertakes to abide by policies and procedures adopted
by the Trust.
9. For providing the services and assuming the expenses outlined herein,
the Trust agrees that the Adviser shall be compensated as follows:
(a) Within five days after the end of each month, the Trust shall pay the
Adviser a basic fee based on the annual rate of .45% of the average
aggregate daily net asset values of the Portfolio. The amounts
payable to the Adviser with respect to the Portfolio shall be based
upon the average of the values of the net assets of such Portfolio as
of the close of business each day, computed in accordance with the
Declaration of Trust.
(b) The basic monthly advisory fee payable to the Adviser described in
paragraph (a), above, shall be subject to a performance adjustment
based upon the Portfolio's Class X Share annual performance as compared
to the following benchmark or such other reference index as the parties
shall agree from time to time. The basic monthly fee will therefore
increase or decrease by .005% for every .10% after the first .50% in
which Portfolio Class X Share performance on a rolling annual basis is
higher or lower than that of the NAREIT Equity Total Return Index. In
no event will the increase or decrease in any one annual period exceed
.15%. The annual reference period shall commence upon the effective
date hereof and terminate on each annual anniversary thereafter. The
performance fee shall be computed and be payable within thirty (30)
days subsequent to each of the aforedescribed anniversary dates.
(c) Compensation shall accrue immediately upon the effective date of this
Agreement.
(d) If there is termination of this Agreement during a month, each
Portfolio fee for that month shall be proportionately computed upon the
average of the daily net asset values of such Portfolio for such
partial period in such month.
(e) The Adviser agrees to reimburse the Trust for the amount, if any, by
which the total operating and management expenses for any Portfolio
(including the Adviser'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 Portfolio is permitted to bear under
the most restrictive expense limitation (which is not waived by a
State) imposed on open-end investment companies by any state in which
shares of such Portfolio are then qualified. Such reimbursement, if
any, will be made by the Adviser 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.
10. The services of the Adviser to the Trust are not to be deemed
exclusive, the Adviser being free to render services to others and to engage in
other activities. Without relieving the Adviser of its duties hereunder and
subject to the prior approval of the Trustees and subject further to compliance
with applicable provisions of the Investment Company Act of 1940, as amended,
the Adviser 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 Adviser
and any such agent.
11. The Adviser 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
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the Trust in connection with the matters to which this Agreement or any
Subadvisory Agreement relates, except a loss resulting from willful misfeasance,
bad faith, gross negligence or reckless disregard on the part of the Adviser in
the performance of its duties hereunder.
12. It is understood that:
(a) Trustees, officers, employees, agents and shareholders of the Trust
are or may be "interested persons" of the Adviser or any subadviser as
directors, officers, stockholders or otherwise;
(b) Directors, officers, employees, agents and stockholders of the Adviser
or any subadviser are or may be "interested persons" of the Trust as
Trustees, officers, shareholders or otherwise; and
(c) The existence of any such dual interest shall not affect the validity
hereof or of any transactions hereunder.
13. This Agreement shall become effective with respect to the Portfolio as
of the date stated above (the "Contract Date") and with respect to any
Additional Portfolio, on the date specified in the notice to the Trust from the
Adviser in accordance with paragraph 2 hereof that the Adviser is willing to
serve as Adviser with respect to such Additional Portfolio. Unless terminated as
herein provided, this Agreement shall remain in full force and effect for a
period of one year following the Contract Date, and, with respect to each
Additional Portfolio, until the next anniversary of the Contract Date on which
such Additional Portfolio became subject to the terms and conditions of this
Agreement and shall continue in full force and effect for periods of one year
thereafter with respect to each Portfolio so long as (a) such continuance with
respect to any such Portfolio is approved at least annually by either the
Trustees or by a "vote of the majority of the outstanding voting securities" of
such Portfolio and (b) the terms and any renewal of this Agreement with respect
to any such Portfolio 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 Portfolio is subject to its approval by a "vote of a majority of the
outstanding voting securities" of any such Additional Portfolio on or before the
next anniversary of the Contract Date following the date on which such
Additional Portfolio became a Portfolio hereunder.
Any approval of this Agreement by a vote of the holders of a "majority of
the outstanding voting securities" of any Portfolio shall be effective to
continue this Agreement with respect to such Portfolio notwithstanding (a) that
this Agreement has not been approved by a "vote of a majority of the outstanding
voting securities" of any other Portfolio 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.
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14. The Trust may terminate this Agreement with respect to the Trust or to
the Portfolio upon 60 days' written notice to the Adviser at any time, without
the payment of any penalty, by vote of the Trustees or, as to each Portfolio, by
a "vote of the majority of the outstanding voting securities" of such Portfolio.
The Adviser 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".
15. 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 of 1940, as amended.
16. In the event of termination of this Agreement, or at the request of
the Adviser, the Trust will eliminate all reference to "Phoenix" or "Phoenix
Duff & Xxxxxx" from its name, and will not thereafter transact business in a
name using the word "Phoenix" or "Phoenix Duff & Xxxxxx" in any form or
combination whatsoever, or otherwise use the word "Phoenix" or "Phoenix Duff &
Xxxxxx" as part of its name. The Trust will thereafter in all prospectuses,
advertising materials, letterheads, and other material designed to be read by
investors and prospective investors delete from its name the word "Phoenix" or
"Phoenix Duff & Xxxxxx" or any approximation thereof. If the Adviser chooses to
withdraw the Trust's right to use the word "Phoenix" or "Phoenix Duff & Xxxxxx",
it agrees to submit the question of continuing this Agreement to a vote of the
Trust's shareholders at the time of such withdrawal.
17. 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. The Declaration of Trust, as amended, is or shall be on file with the
Secretary of The Commonwealth of Massachusetts.
18. This Agreement shall be construed and the rights and obligations of the
parties hereunder enforced in accordance with the laws of The Commonwealth of
Massachusetts.
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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.
PHOENIX DUFF & XXXXXX
INSTITUTIONAL MUTUAL FUNDS
By: _________________________________
Xxxxxx X. XxXxxxxxxx, President
PHOENIX REALTY SECURITIES, INC.
By: _________________________________
Xxxxxxx Xxxxx, President
