THE PHOENIX EDGE SERIES FUND
SUBADVISORY AGREEMENT
June 23, 2006
Xxxxxx Investment Management, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
RE: Subadvisory Agreement
Ladies and Gentlemen:
The Phoenix Edge Series Fund (the "Trust") 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 shares
of the Trust are offered or may be offered in several series
(collectively, sometimes hereafter referred to as the "Series").
Phoenix Investment Counsel, Inc. (the "Adviser") evaluates and
recommends series subadvisers for the Series and is responsible
for the day-to-day management of the Series.
1. Employment as a Subadviser. The Adviser, being duly
authorized, hereby employs Xxxxxx Investment Management,
Inc. (the "Subadviser") as a discretionary series
subadviser to invest and reinvest the assets of each of the
Series set forth on Schedule F attached hereto (the
"Designated Series") on the terms and conditions set forth
herein. The services of the Subadviser hereunder are not to
be deemed exclusive by reason of this Agreement (and
without prejudice to any applicable restrictions set forth
in any other written agreement between the Subadviser or
any of its affiliates, on the one hand, and the Adviser or
any of its affiliates, on the other hand); the Subadviser
may (subject to the terms of any such other written
agreements) 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 discretionary series
subadviser of each of the Designated Series and agrees to
use its best professional judgment to make investment
decisions for each such Designated Series in accordance
with the provisions of this Agreement and as set forth in
Schedule D attached hereto and made a part hereof.
3. Services of Subadviser. In providing management services to
each of the Designated Series, the Subadviser shall be
subject to the investment objectives, policies and
restrictions of the Trust as they apply to such Designated
Series and as set forth in the Trust's then current
prospectus ("Prospectus") and statement of additional
information ("Statement of Additional Information") filed
with the Securities and Exchange Commission (the "SEC") as
part of the Trust's Registration Statement, as may be
periodically amended and provided to the Subadviser by the
Adviser, and to the investment restrictions set forth in
the Act and the Rules thereunder, to the supervision and
control of the Trustees of the Trust (the "Trustees"), and
to instructions from the Adviser. The Subadviser shall not,
without the Trust's prior written approval, effect any
transactions that would cause any Designated Series at the
time of the transaction to be out of compliance with any of
such restrictions or policies applicable to such Designated
Series.
4. Transaction Procedures. All series transactions for the
Designated Series shall be consummated by payment to, or
delivery by, the custodian(s) from time to time designated
by the Trust (the "Custodian"), or such depositories or
agents as may be designated by the Custodian in writing, 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 to the Trust all
investment orders for the Designated Series placed by it
with brokers and dealers at the time and in the manner set
forth in Schedule A hereto (as amended from time to time).
The Trust shall issue to the Custodian such instructions as
may be appropriate in connection with the settlement of any
transaction initiated by the Subadviser. The Trust 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 act, omissions or other conduct of the
Custodian.
5. Allocation of Portfolio Transactions. The Subadviser shall
have authority and discretion to select brokers and dealers
to execute Designated Series transactions initiated by the
Subadviser, and to select the markets in which the
transactions will be executed.
A. In placing orders for the sale and purchase of the
Designated Series' securities for the Trust, 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 Trust, so long as the
Subadviser reasonably believes that the broker or
dealer selected by it can be expected to obtain a
"best execution" market price 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 Trust, as to which the Subadviser
exercises investment discretion, notwithstanding that
the Trust may not be the direct or exclusive
beneficiary of any such services or that another
broker may be willing to charge the Trust a lower
commission on the particular transaction.
B. The Subadviser may manage other portfolios and expects
that the Trust and other portfolios the Subadviser
manages will, from time to time, purchase or sell the
same securities. The Subadviser may aggregate orders
for the purchase or sale of securities on behalf of
the Designated Series with orders on behalf of other
portfolios the Subadviser manages in accordance with
the policies with respect to the execution of
portfolio transactions as set forth in the Fund's then
current Prospectus and Statement of Additional
Information, as amended from time to time, and under
the Act. Securities purchased or proceeds of
securities sold through aggregated orders shall be
allocated to the account of each portfolio managed by
the Subadviser that bought or sold such securities at
the average execution price. If less than the total of
the aggregated orders is executed, purchased
securities or proceeds shall generally be allocated
pro rata among the participating portfolios in
proportion to their planned participation in the
aggregated orders.
C. The Subadviser shall not execute any transactions for
the Designated Series with a broker or dealer that is
an "affiliated person" (as defined in the Act) of the
Trust, the Subadviser or the Adviser unless such
execution is in compliance with the procedures and
standards adopted by the Board of Trustees, as set
forth in the Fund's then current Prospectus and
Statement of Additional Information, as amended from
time to time, and under the Act. The Trust shall
provide the Subadviser with a list of brokers and
dealers that are "affiliated persons" of the Trust or
the Adviser and will notify the Subadviser as promptly
as practicable when such list changes.
D. The Subadviser shall at all times place orders for the
sale and purchase of securities in accordance with the
brokerage policy of the Designated Series as set forth
in the Prospectus subject to the oversight of the
Adviser and/or the Trustees.
6. Proxies.
A. The Subadviser, or a third party designee acting under
the authority and supervision of the Subadviser, shall
review all proxy solicitation materials and be
responsible for voting and handling all proxies in
relation to the assets of the Designated Series.
Unless the Adviser or the Trust gives the Subadviser
written instructions to the contrary, the Subadviser
or an agent designated by the Subadviser will, in
compliance with the proxy voting procedures of the
Designated Series then in effect, vote or abstain from
voting, all proxies solicited by or with respect to
the issuers of securities in which assets of the
Designated 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 in a timely manner with
a record of votes cast containing all of the voting
information required by Form N-PX in an electronic
format to enable the Trust to file Form N-PX as
required by Rule 30b1-4 under the Act.
B. The Subadviser is authorized to deal with
reorganizations and exchange offers with respect to
securities held in the Series in such manner as the
Subadviser deems advisable, unless the Trust or the
Adviser otherwise specifically directs in writing.
7. Prohibited Conduct. In providing the services described in
this Agreement, the Subadviser's responsibility regarding
investment advice hereunder is limited to the Designated
Series, and the Subadviser will not consult with any other
investment advisory firm that provides investment advisory
services to the Trust or any other investment company
sponsored by Phoenix Investment Partners, Ltd. Regarding
transactions for the Trust in securities or other assets.
The Trust shall provide the Subadviser with a list of
investment companies sponsored by Phoenix Investment
Partners, Ltd. and the Subadviser shall be in breach of the
foregoing provision only if the investment company is
included in such a list provided to the Subadviser prior to
such prohibited action. In addition, the Subadviser shall
not, without the prior written consent of the Trust and the
Adviser, delegate any obligation assumed pursuant to this
Agreement to any affiliated or unaffiliated third party.
8. Information and Reports.
A. The Subadviser shall keep the Trust and the Adviser
informed of developments relating to its duties as
Subadviser of which the Subadviser has, or should
have, knowledge that would materially affect the
Designated Series. In this regard, the Subadviser
shall provide the Trust, the Adviser and their
respective officers with such reports concerning the
obligations the Subadviser has assumed under this
Agreement as the Trust and the Adviser may from time
to time reasonably request. In addition, prior to each
regular meeting of the Trustees, the Subadviser shall
provide the Adviser and the Trustees with reports
regarding the Subadviser's management of the
Designated Series managed by the Subadviser during the
most recently completed quarter which reports: (i)
shall include, to the extent possible, Subadviser's
representation that its performance of its investment
management duties hereunder is in compliance with the
Trust's investment objectives and practices, the Act
and applicable rules and regulations under the Act,
and the diversification requirements of Subchapter M
and Section 817(h) of the Internal Revenue Code of
1986, as amended, and (ii) otherwise shall be in such
form as may be mutually agreed upon by the Subadviser
and the Adviser.
B. Each of the Adviser and the Subadviser shall provide
the other party with a list, to the best of the
Adviser's or the Subadviser's respective knowledge, of
each affiliated person, as defined under Section
2(a)(3) of the Act, and any affiliated person of such
an affiliated person, of the Adviser or the
Subadviser, as the case may be, and each of the
Adviser and Subadviser agrees promptly to update such
list whenever the Adviser or the Subadviser becomes
aware of any changes that should be added to or
deleted from the list of affiliated persons.
C. The Subadviser shall also provide the Adviser with any
information reasonably requested by the Adviser
regarding its management of the Designated Series
required for any shareholder report, amended
registration statement, or Prospectus supplement to be
filed by the Trust with the SEC.
9. 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 Trust and the Adviser (the "Advisory
Agreement"), the Adviser is solely responsible for the
payment of fees to the Subadviser.
10. Limitation of Liability. The Subadviser shall not by reason
of this Agreement (and without prejudice to any liabilities
the Subadviser may have pursuant to any other written
agreement between the Subadviser or any of its affiliates,
on the one hand, and the Adviser or any of its affiliates,
on the other hand) be liable for any action taken, omitted
or suffered to be taken by it in its best professional
judgment, in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon
it by this Agreement, or in accordance with specific
directions or instructions from the Trust, provided,
however, that such acts or omissions shall not have
constituted a material breach of the investment objectives,
policies and restrictions or laws or regulations applicable
to any of the Designated Series as defined in the
Prospectus and Statement of Additional Information or under
the Act or other applicable laws or regulations, as
applicable, and that such acts or omissions shall not have
resulted from the Subadviser's willful misfeasance, bad
faith or gross negligence, or reckless disregard of its
obligations and duties hereunder.
11. Confidentiality. Subject to the duty of the Subadviser and
the Trust to comply with applicable law (but without
prejudice to any applicable restrictions set forth in any
other written agreement between the Subadviser or any of
its affiliates, on the one hand, and the Adviser or any of
its affiliates, on the other hand), including any demand of
any regulatory or taxing authority having jurisdiction, the
Subadviser shall treat as confidential all information
pertaining to the Designated Series and the actions of the
Subadviser and the Trust in respect thereof. The parties
acknowledge and agree that all nonpublic personal
information with regard to shareholders in the Designated
Series shall be deemed proprietary information of the
Designated Series of the Trust, and that the Subadviser
shall use that information solely in the performance of its
duties and obligations under this Agreement and shall take
reasonable steps to safeguard the confidentiality of that
information. Further, the Subadviser shall maintain and
enforce adequate security procedures with respect to all
materials, records, documents and data relating to any of
its responsibilities pursuant to this Agreement including
all means for the effecting of investment transactions.
12. 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
Trust 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 Trust to consider whether an
assignment as defined in Section 2(a)(4) of the Act will
occur, and to take the steps necessary to enter into a new
subadvisory agreement. The Subadviser will be liable to the
Fund and the Adviser for all administrative costs resulting
from a change of control of the Subadviser, including
without limitation all costs associated with any proxy
solicitations, Board meetings and revisions to the
Prospectus or marketing materials. The understandings and
obligations set forth in this Section shall survive the
termination of this Agreement and shall be binding upon the
Subadviser and its successors.
13. Representations, Warranties and Agreements of the
Subadviser. The Subadviser represents, warrants and agrees
(without prejudice to any applicable requirements set forth
in any other written agreement between the Subadviser or
any of its affiliates, on the one hand, and the Adviser or
any of its affiliates, on the other hand) that:
A. It is registered as an "Investment Adviser" under the
Investment Advisers Act of 1940, as amended ("Advisers
Act").
B. It will maintain, keep current and preserve on behalf
of the Trust, in the manner required or permitted by
the Act and the rules thereunder including the records
identified in Schedule B (as Schedule B may be amended
from time to time). The Subadviser agrees that such
records are the property of the Trust, and shall be
surrendered to the Trust or to the Adviser as agent of
the Trust promptly upon request of either. The Trust
acknowledges that Subadviser may retain copies of all
records required to meet the record retention
requirements imposed by law and regulation.
C. It shall maintain a written code of ethics (the "Code
of Ethics") complying with the requirements of Rule
204A-1 under the Advisers Act and Rule 17j-l under the
Act and shall provide the Trust and the Adviser with a
copy of the Code of Ethics and evidence of its
adoption. It shall institute procedures reasonably
necessary to prevent Access Persons (as defined under
Rule 17j-1) from violating its Code of Ethics. The
Subadviser acknowledges receipt of the written code of
ethics adopted by and on behalf of the Trust. Each
calendar quarter while this Agreement is in effect, a
duly authorized compliance officer of the Subadviser
shall certify to the Trust and to the Adviser that the
Subadviser has complied with the requirements of Rules
204A-1 and 17j-l during the previous calendar quarter
and that there has been no material violation of its
Code of Ethics, or of Rule 17j-1(b), or that any
persons covered under its Code of Ethics has divulged
or acted upon any material, non-public information, as
such term is defined under relevant federal securities
laws, and if such a violation has occurred that
appropriate action was taken in response to such
violation. Annually, the Subadviser shall furnish to
the Trust and the Adviser a written report which
complies with the requirements of Rule 17j-1
concerning the Subadviser's Code of Ethics to the
Trust and the Adviser. The Subadviser shall permit the
Trust and the Adviser to examine the reports required
to be made by the Subadviser under Rules 204A-1(b) and
17j-l(d)(1) and this subparagraph.
D. It has adopted and implemented, and throughout the
term of this Agreement shall maintain in effect and
implement, policies and procedures reasonably designed
to prevent, detect and correct violations by the
Subadviser and its supervised persons, and, to the
extent the activities of the Subadviser in respect to
the Trust could affect the Trust, by the Trust, of
federal securities laws, as defined in Rule 38a-1
under the Act, and that the Subadviser has provided
the Trust with true and complete copies of its
policies and procedures (or summaries thereof) and
related information reasonably requested by the Trust.
The Subadviser agrees to cooperate with periodic
reviews by the Trust's compliance personnel of the
Subadviser's policies and procedures, their operation
and implementation and other compliance matters and to
provide to the Trust from time to time such additional
information and certifications in respect of the
Subadviser's policies and procedures, compliance by
the Subadviser with federal securities laws and
related matters and the Trust's compliance personnel
may reasonably request. The Subadviser agrees to
promptly notify the Adviser of any compliance
violations which affect the Designated Series.
E. Reference is hereby made to the Declaration of Trust
dated [date], as subsequently amended, establishing
the Trust, 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 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 filed. The name "The Phoenix
Edge Series Fund" refers to the Trustees under said
Declaration of Trust, as Trustees and not personally,
and no Trustee, shareholder, officer, agent or
employee of the Trust shall be held to any personal
liability in connection with the affairs of the Trust;
only the trust 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 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 Trust or of any
successor of the Trust, whether such liability now
exists or is hereafter incurred for claims against the
trust estate.
F. It will use all necessary efforts to manage the
Designated Series so that it will satisfy the
diversification requirements of Section 817(h) of the
Internal Revenue Code of 1986, as amended.
14. Entire Agreement; Amendment. This Agreement, together with
the Schedules attached hereto, constitutes the entire
agreement of the parties with respect to the subject matter
hereof and supersedes any prior written or oral agreements
pertaining to the subject matter of this Agreement. This
Agreement may be amended at any time, but only by written
agreement among the Subadviser, the Adviser and the Trust,
which amendment, other than amendments to Schedules A, B,
D, E and F, is subject to the approval of the Trustees and
the shareholders of the Designated Series as and to the
extent required by the Act.
15. Effective Date; Term. This Agreement shall become effective
on the date set forth on the first page of this Agreement,
and shall continue in effect until November 30, 2007. The
Agreement shall continue from year to year 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.
16. Termination. This Agreement may be terminated as to the
entire Trust or any individual Designated Series by any of
the Adviser, the Subadviser or the Trust without penalty
hereunder, immediately upon written notice to the other
parties in the event of a material breach of any provision
thereof by a party so notified, or otherwise upon sixty
(60) days' written notice to the other parties, but any
such termination shall not affect the obligations or
liabilities of any party hereto to the other parties with
respect to events occurring prior to such termination. In
the event that this Agreement is terminated pursuant to the
immediately preceding sentence with respect to some but not
all of the Designated Series, this Agreement shall remain
in full force and effect in accordance with its terms with
respect to each of the remaining Designated Series with
respect to which it has not been terminated.
17. 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.
18. 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.
19. Notices. Any notice or other communication required to be
given pursuant to this Agreement shall be deemed duly given
if delivered personally or by overnight delivery service or
mailed by certified or registered mail, return receipt
requested and postage prepaid, or sent by facsimile
addressed to the parties at their respective addresses set
forth below, or at such other address as shall be
designated by any party in a written notice to the other
party.
(a) To Phoenix or the Trust at:
Phoenix Investment Counsel, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Vice President and Clerk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxx.xxxxx@xxxxxxxxx.xxx
(b) To Xxxxxx Investment Management, Inc. at:
Xxxxxx Investment Management, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx.xxxxxxxxx@xxxxxxxxxx.xxx
Attn: Xxxxxx X. XxXxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxx.xxx
20. Certifications. The Subadviser hereby warrants and
represents that it will provide, to the extent compliant
with all applicable laws, the requisite certifications
reasonably requested by the chief executive officer and
chief financial officer of the Trust necessary for those
named officers to fulfill their reporting and certification
obligations on Form N-CSR and Form N-Q as required under
the Xxxxxxxx-Xxxxx Act of 2002 to the extent that such
reporting and certifications relate to the Subadviser's
duties and responsibilities under this Agreement.
Subadviser shall provide a quarterly certification in a
form substantially similar to that attached as Schedule E.
21. Indemnification.
(a) The Adviser agrees to indemnify and hold harmless
the Subadviser, its officers and directors, and any person
who "controls" the Subadviser, within the meaning of
Section 15 of the Securities Act of 1933, as amended (the
"1933 Act"), from and against any and all direct or
indirect liabilities, losses or damages (including
reasonable attorneys' fees and costs) suffered by
Subadviser arising from, or connected with, (i) the
Adviser's breach of any provision of this Agreement, (ii)
willful misfeasance, bad faith, reckless disregard or gross
negligence on the part of the Adviser or any of its
officers, directors or employees in or relating to the
performance of the Adviser's duties and obligations under
this Agreement, (iii) the operation of the Designated
Series or the Fund, or the distribution of shares of the
Designated Series or the Fund, (iv) the performance, non-
performance or omission of any third-party service provider
to the Designated Series or (v) any untrue statement or
alleged untrue statement of a material fact contained in
the Prospectus and Statement of Additional Information, as
amended or supplemented from time to time or promotional
materials pertaining or relating to the Designated Series
or any amendment thereof or any supplement thereto or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement therein not misleading, if such a statement or
omission was made by the Fund other than in reliance upon
written information furnished by the Subadviser or any
affiliated person of the Subadviser, expressly for use in
the Fund's registration statement or other than upon verbal
information confirmed by the Subadviser in writing
expressly for use in the Fund's registration statement.
The Adviser acknowledges and agrees that the Subadviser
makes no representation or warranty, express or implied,
that any level of performance or investment results will be
achieved by the Designated Series or that the Designated
Series will perform comparably with any standard or index,
including other clients of the Subadviser, whether public
or private.
In no case shall the Adviser's indemnity in favor of the
Subadviser or any affiliated person or controlling person
of the Subadviser, or any other provision of this
Agreement, be deemed to protect such person against any
liability to which any such person would otherwise be
subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and
duties under this Agreement.
(b) The Subadviser agrees to indemnify and hold
harmless the Adviser, its officers and directors, and any
person who "controls" the Adviser, within the meaning of
Section 15 of the 1933 Act, from and against any and all
direct or indirect liabilities, losses or damages
(including reasonable attorneys' fees and costs) suffered
by Adviser arising from or connected with (i) the
Subadviser's breach of its duties under this Agreement,
(ii) willful misfeasance, bad faith, reckless disregard or
gross negligence on the part of the Subadviser or any of
its officers, directors or employees in the performance of
the Subadviser's duties and obligations under this
Agreement or (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus or
Statement of Additional Information, as amended or
supplemented from time to time relating to the Designated
Series or any amendment thereof or any supplement thereto
or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statement therein not misleading, if such a
statement or omission was made in reliance upon written
information furnished by the Subadviser or any affiliated
person of the Subadviser to the Adviser, the Fund or any
affiliated person of the Adviser or the Fund expressly for
use in the Fund's registration statement, or upon verbal
information confirmed by the Subadviser in writing
expressly for use in the Fund's registration statement; or
(iv) to the extent of, and as a result of, the failure of
the Subadviser to execute, or cause to be executed,
portfolio transactions according to the standards and
requirements of the Securities Exchange Act of 1934, the
1940 Act and the Advisers Act.
In no case shall the Subadviser's indemnity in favor of the
Adviser or any affiliated person or controlling person of
the Adviser, or any other provision of this Agreement, be
deemed to protect such person against any liability to
which any such person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in
the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this
Agreement.
22. Receipt of Disclosure Document. The Trust acknowledges
receipt, at least 48 hours prior to entering into this
Agreement, of a copy of Part II of the Subadviser's Form
ADV containing certain information concerning the
Subadviser and the nature of its business.
23. Counterparts; Fax Signatures. This Agreement may be
executed in any number of counterparts (including executed
counterparts delivered and exchanged by facsimile
transmission) with the same effect as if all signing
parties had originally signed the same document, and all
counterparts shall be construed together and shall
constitute the same instrument. For all purposes,
signatures delivered and exchanged by facsimile
transmission shall be binding and effective to the same
extent as original signatures.
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
ACCEPTED:
Xxxxxx Investment Management, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Partner and Chief Financial Officer
SCHEDULES: A. Operational Procedures
B. Record Keeping Requirements
C. Fee Schedule
D. Subadviser Functions
E. Form of Sub-Certification
F. Designated Series
SCHEDULE A
OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary
for a flow of information to be supplied by Subadviser to State
Street and Bank Trust Company (the "Custodian") and PFPC, Inc.,
(the "Sub-Accounting Agent") for the Trust.
The Subadviser must furnish the Custodian and the Sub-Accounting
Agent 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 each day
the Trust is open for business. (Subadviser will be responsible
for reimbursement to the Trust for any loss caused by the
Subadviser's failure to comply.) It is permissible to send the
necessary information via facsimile machine to the Custodian and
the Sub-Accounting Agent. Information provided to the Custodian
and the Sub-Accounting Agent shall include the following:
1. Purchase or sale;
2. Security name;
3. CUSIP number, ISIN or Sedols (as applicable);
4. Number of shares and sales price per share or
aggregate principal amount;
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. Trade commission reason: best execution, soft dollar
or research.
When opening accounts with brokers for, and in the name of, the
Trust, the account must be a cash account. No margin accounts
are to be maintained in the name of the Trust. Delivery
instructions are as specified by the Custodian. The Custodian
will supply the Subadviser daily with a cash availability report
via access to the Custodian website, or by email or by facsimile
and the Sub-Accounting Agent will provide a five day cash
projection. This will normally be done by email or, if email is
unavailable, by another form of immediate written communication,
so that the Subadviser will know the amount available for
investment purposes.
SCHEDULE B
RECORDS TO BE MAINTAINED BY THE SUBADVISER
1. (Rule 31a-1(b)(5)) A record of each brokerage order, and
all other series purchases and sales, given by the
Subadviser on behalf of the Trust for, or in connection
with, the purchase or sale of securities, whether executed
or unexecuted. Such records shall include:
A. The name of the broker;
B. The terms and conditions of the order and of any
modifications or cancellations thereof;
C. The time of entry or cancellation;
D. The price at which executed;
E. The time of receipt of a report of execution; and
F. The name of the person who placed the order on behalf
of the Trust.
2. (Rule 31a-1(b)(9)) A record for each fiscal quarter,
completed within ten (10) days after the end of the
quarter, showing specifically the basis or bases upon which
the allocation of orders for the purchase and sale of
series securities to named brokers or dealers was effected,
and the division of brokerage commissions or other
compensation on such purchase and sale orders. Such record:
A. Shall include the consideration given to:
(i) The sale of shares of the Trust by brokers or
dealers.
(ii) The supplying of services or benefits by
brokers or dealers to:
(a) The Trust,
(b) The Adviser,
(c) The Subadviser, and
(d) Any person other than the foregoing.
(iii) Any other consideration other than the
technical qualifications of the brokers and
dealers as such.
B. Shall show the nature of the services or benefits made
available.
C. Shall describe in detail the application of any
general or specific formula or other determinant used
in arriving at such allocation of purchase and sale
orders and such division of brokerage commissions or
other compensation.
D. The name of the person responsible for making the
determination of such allocation and such division of
brokerage commissions or other compensation.
3. (Rule 31a-1(b)(10)) A record in the form of an appropriate
memorandum identifying the person or persons, committees or
groups authorizing the purchase or sale of series
securities. Where a committee or group makes an
authorization, a record shall be kept of the names of its
members who participate in the authorization. There shall
be retained as part of this record: any memorandum,
recommendation or instruction supporting or authorizing the
purchase or sale of series securities and such other
information as is appropriate to support the
authorization.*
4. (Rule 31a-1(f)) Such accounts, books and other documents as
are required to be maintained by registered investment
Advisers by rule adopted under Section 204 of the Advisers
Act, to the extent such records are necessary or
appropriate to record the Subadviser's transactions for the
Trust.
5. Records as necessary under Board-approved The Phoenix Edge
Series Fund's valuation policies and procedures.
_______
* Such information might include: current financial information,
annual and quarterly reports, press releases, reports by
analysts and from brokerage firms (including their
recommendations, i.e., buy, sell, hold) or any internal reports
or subadviser review.
SCHEDULE C
SUBADVISORY FEE
(a) For services provided hereunder, the Adviser will pay
to the Subadviser, on or before the 10th day of each month, a fee
with respect to each Designated Series, payable in arrears, at
the annual rate stated in paragraph (b) below. The fees payable
in respect of a Designated Series shall be prorated for any
month during which this Agreement is in effect for only a
portion of the month with respect to such Designated Series. In
computing the fee to be paid to the Subadviser, the net asset
value of the Trust and each Designated Series shall be valued as
set forth in the then-current registration statement of the
Trust.
(b) The fee to be paid by the Adviser to the Subadviser
with respect to each Designated Series shall be at the annual
sub-advisory fee rate set forth opposite such Designated Series'
name below; provided, however, that, in the event there is any
reduction after the date of the Transaction Agreement in the
annual advisory fee rate payable by a Designated Series to the
Adviser pursuant to the Advisory Agreement, the annual sub-
advisory fee rate payable by the Adviser to the Subadviser with
respect to such Designated Series automatically shall be reduced
by 50% of the amount of such reduction in such annual advisory
fee rate (measured in basis points); and provided, further,
that, in the event the net advisory fee retained by the Adviser
with respect to a Designated Series (for the avoidance of doubt,
after taking into account any applicable waivers, reimbursements
or other similar offsets or arrangements applicable to such
Designated Series that are required to be paid by the Adviser or
its affiliates) is less than the annual contractual advisory fee
payable by a Designated Series to the Adviser pursuant to the
Advisory Agreement, the fee to be paid by the Adviser to the
Subadviser with respect to such Designated Series automatically
shall be reduced by 50% of the amount of such difference between
such contractual advisory fee rate and such net advisory fee
actually retained by the Adviser with respect to such Designated
Series (and the Subadviser agrees promptly upon request to
reimburse to the Adviser any over-payments previously made
pursuant to this Agreement to the extent that such amounts
ultimately are reasonably determined by the Adviser to be in
excess of the amounts required to be paid pursuant hereto after
taking into account any annual or other periodic reimbursements
or similar payments required to be made by the Adviser or its
affiliates to the Trust or a Designated Series in connection
with any such waivers, reimbursements or other similar offsets
or arrangements):
Name of Designated Series Annual Sub-Advisory Fee Rate
Phoenix Capital Growth Fund 0.30
SCHEDULE D
SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of
the Designated Series' assets, the Subadviser shall provide, at
its own expense:
(a) An investment program for each Designated 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 the Adviser in paragraph 3 of this
Subadvisory Agreement and implementation of that
program;
(b) Periodic reports, on at least a quarterly basis, in
form and substance acceptable to the Adviser,
including but not limited to reports 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 Trust relative to
securities eligible for resale under Rule 144A under
the Securities Act of 1933, as amended; iii)
diversification of each Designated Series' assets in
accordance with the then governing laws and prevailing
Prospectus and Statement of Additional Information
pertaining to the Designated Series and governing
laws, regulations, rules and orders; iv) compliance
with governing Fund policies and 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
Designated Series' limitation on acquisition of
illiquid securities; v) cross transactions conducted
pursuant to Rule 17a-7 under the 1940 Act; vi)
allocations of brokerage transactions along with
descriptions of the bases for those allocations and
the receipt and treatment of brokerage and research
services received, as may be requested to ensure
compliance with Section 28(e) of the Securities
Exchange Act of 1934; vii) any and all other reports
reasonably requested in accordance with or described
in this Agreement; and viii) the implementation of the
Designated Series' investment program, including,
without limitation, analysis of Designated Series
performance;
(c) Annual or other periodic reports, in form and
substance acceptable to the Adviser, including but not
limited reports with respect to: (i) analyses of
Designated Series performance; (ii) disclosure related
to the portfolio management of the Designated Series
and the Subadviser as may be contained in the
Prospectus or marketing materials as amended,
supplemented or otherwise updated from time to time;
(iii) compliance with the Subadviser's Code of Ethics
pursuant to Rule 17j-1; and (iv) such compliance
certifications as may be reasonably requested;
(d) Promptly after filing with the SEC an amendment to its
Form ADV, a copy of such amendment to the Adviser and
the Trustees;
(e) Attendance by appropriate representatives of the
Subadviser at meetings requested by the Adviser or
Trustees at such time(s) and location(s) as reasonably
requested by the Adviser or Trustees;
(f) Notice to the Trustees and the Adviser of the
occurrence of any event which would disqualify the
Subadviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the
1940 Act or otherwise;
(g) Provide reasonable assistance in the valuation of
securities including the participation of appropriate
representatives at fair valuation committee meetings;
and
(h) Supply the Fund's independent accountants,
PricewaterhouseCoopers LLP, or any successor
accountant for the Fund, any information that it may
reasonably request in connection with the Fund.
SCHEDULE E
FORM OF SUB-CERTIFICATION
To:
Re: Form N-CSR and Form N-Q Certification for the [Name of
Designated Series].
From: [Name of Subadviser]
Representations in support of Investment Company Act Rule
30b1-5 certifications of Form N-CSR and Form N-Q.
[Name of Designated Series]
In connection with your certification responsibility under
Rule 30b1-5 and Sections 302 and 906 of the Xxxxxxxx-Xxxxx
Act of 2002, I have reviewed the following information
presented for the period ended [Date of Reporting Period]
(the "Reports") which forms part of the N-CSR or N-Q, as
applicable, for the [Trust.
Schedule of Investments (the "Reports")
Our organization has designed, implemented and maintained
internal controls and procedures, designed for the purpose of
ensuring the accuracy and completeness of relevant portfolio
trade data transmitted to those responsible for the preparation
of the Schedule of Investments. As of the date of this
certification there have been no material modifications to these
internal controls and procedures.
In addition, our organization has:
a. Designed such internal controls and procedures to ensure
that material information is made known to the appropriate
groups responsible for servicing the above-mentioned mutual
funds.
b. Evaluated the effectiveness of our internal controls and
procedures, as of a date within 90 days prior to the date
of this certification and we have concluded that such
controls and procedures are effective.
c. In addition, to the best of my knowledge there has been no
fraud, whether, or not material, that involves our
organization's management or other employees who have a
significant role in our organization's control and
procedures as they relate to our duties as subadviser to
the Trust.
I have read the draft of the Reports which I understand to be
current as of [Date of Reporting Period] and based on my
knowledge, such drafts of the Reports do not, with respect to
the Trust, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the information
contained therein, in light of the circumstances under which
such information is resented, not misleading with respect to the
period covered by such draft Reports.
I have disclosed, based on my most recent evaluation, to the
Trust's Chief Accounting Officer:
a. All significant changes, deficiencies and material
weakness, if any, in the design or operation of the
Subadviser's internal controls and procedures which could
adversely affect the Adviser's ability to record, process,
summarize and report financial data with respect to the
Trust in a timely fashion;
b. Any fraud, whether or not material, that involves the
Subadviser's management or other procedures for financial
reporting as they relate to our duties as Subadviser to the
Trust.
I certify that to the best of my knowledge:
a. The Subadviser's Portfolio Manager(s) has/have complied
with the restrictions and reporting requirements of the
Code of Ethics (the "Code"). The term Portfolio Manager is
as defined in the Code.
b. The Subadviser has complied with the Prospectus and
Statement of Additional Information of the Trust and the
Policies and Procedures of the Trust as adopted by the
Trust's Board of Trustees to the extent they relate to our
duties as Subadviser to the Trust.
c. I have no knowledge of any compliance violations except as
disclosed in writing to the Phoenix Compliance Department
by me or by the Subadviser's compliance administrator.
d. The Subadviser has complied with the rules and regulations
of the 33 Act and 40 Act, and such other regulations as may
apply to the extent those rules and regulations pertain to
the responsibilities of the Subadviser with respect to the
Trust as outlined above.
This certification relates solely to the Trust named above and
may not be relied upon by any other fund or entity.
The Subadviser does not maintain the official books and records
of the above Trust. The Subadviser's records are based on its
own portfolio management system, a record-keeping system that is
not intended to serve as the Trust's official accounting system.
The Subadviser is not responsible for the preparation of the
Reports.
_______________________________ __________________________
[Name of Authorized Signature] Date
SCHEDULE F
DESIGNATED SERIES
Phoenix Capital Growth Fund
