EXHIBIT 23 (h) (6)
FORM OF
PARTICIPATION AGREEMENT
FORM OF
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of May 1, 2006, between The Phoenix Edge
Series Fund, a business trust organized under the laws of the Commonwealth of
Massachusetts, on behalf of itself or its separate series listed on Schedule A,
severally and not jointly (each, an "Investing Fund"), and iShares Trust, a
business trust organized under the laws of the State of Delaware, and iShares,
Inc., a corporation organized under the laws of the State of Delaware, each on
behalf of its respective iShares series, severally and not jointly (each an
"iShares Fund" and collectively the "iShares Funds").
WHEREAS, Investing Fund and the iShares Funds each are registered with
the U.S. Securities and Exchange Commission ("SEC") as open-end management
investment companies under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, section 12(d)(1)(A) and (B) of the 1940 Act limits the ability
of an investment company to invest in shares of another investment company, and
therefore limits the ability of an Investing Fund to invest in shares of an
iShares Fund;
WHEREAS, iShares Trust and iShares, Inc., on behalf of each iShares
Fund, have obtained an order from the SEC dated April 15, 2003 (the "iShares
Order"), that permits registered investment companies to invest in the iShares
Funds in excess of the limits set forth in section 12(d)(1)(A) and (B) in
accordance with the conditions of the iShares Order and the representations in
the application filed to obtain such Order (the "iShares Application"); and
WHEREAS, the Investing Fund may, from time to time, invest in shares of
one or more iShares Funds in excess of the limitations of section 12(d)(1)(A)
and (B) in reliance on the iShares Order;
NOW THEREFORE, in consideration of the potential benefits to the
Investing Fund and the iShares Funds arising out of the Investing Fund's
investment in iShares Funds, the parties agree as follows.
1. Representations and Obligations of the iShares Funds.
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(a) The iShares Funds have provided to the Investing Fund a
copy of the iShares Order and the related SEC Notice of
Application for such Order. The iShares Funds will promptly
provide the Investing Fund with (i) a copy of any amendments
to the iShares Order, and (ii) a copy of the iShares
Application upon request.
(b) In connection with any investment by an Investing Fund in
an iShares Fund, the iShares Fund agrees (i) to comply with
the terms and conditions of the iShares Order and this
Agreement, and (ii) to promptly notify the Investing Fund if
such iShares Fund fails to comply with the terms and
conditions of the iShares Order or this Agreement.
(c) iShares(R) is a registered trademark of Barclays Global
Investors, N.A. ("BGI") and BGI has licensed the trademark to
the iShares Funds.
2. Representations and Obligations of the Investing Funds.
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(a) Pursuant to Condition 9 of the iShares Order, each
Investing Fund represents that the board of trustees of the
Investing Fund and the Investing Fund's advisor understand the
terms and conditions of the iShares Order and that each agrees
to fulfill its responsibilities under the iShares Order.
(b) Pursuant to Condition 9 of the iShares Order, each
Investing Fund will promptly notify the iShares Funds in
writing at the time of any investment by such Fund in an
iShares Fund in excess of the 3% limit in Section 12(d)(1)(A)
(i).
(c) Each Investing Fund will promptly notify the iShares
Funds in writing of any purchase or acquisition of shares of
an iShares Fund that causes such Investing Fund to hold (i) 5%
or more of such iShares Fund's total outstanding voting
securities, and (ii) 10% or more of such iShares Fund's total
outstanding voting securities.
(d) To the extent an Investing Fund holds 5% or more of the
total outstanding voting securities of an iShares Fund, the
Investing Fund agrees to vote its shares in the same
proportion as the vote of all other holders of shares of such
iShares Fund.
(e) If an Investing Fund exceeds the 5% or 10% limitations in
Sections 12(d)(1)(A)(ii) or (iii), the Investing Fund, as
required by the iShares Application, will disclose in its
prospectus in "Plain English":
(1) That it may invest in exchange-traded funds; and
(2) The unique characteristics of the Investing Fund
investing in exchange-traded funds, including but not
limited to, the basic expense structure and
additional expenses, if any, of investing in
exchange-traded funds.
(f) Each Investing Fund: (i) acknowledges that it has received
a copy of the iShares Order and the related SEC Notice of
Application for such Order; (ii) agrees to adhere to the terms
and conditions of the iShares Order and this Agreement and to
participate in the proposed transactions in a manner that
addresses the concerns underlying the iShares Order; (iii)
represents that investments in the iShares Funds will be
accomplished in compliance with its investment restrictions
and will be consistent with the investment policies set forth
in its registration statement; (iv) acknowledges that it may
rely on the iShares Order only to invest in iShares Funds and
not in any other investment company; and (v) agrees to
promptly notify the iShares Funds if it fails to comply with
the iShares Order or this Agreement.
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3. Indemnification.
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Each Investing Fund agrees to hold harmless and indemnify the
iShares Funds, including any principals, directors or
trustees, officers, employees and agents, against and from any
and all losses, expenses or liabilities incurred by or claims
or actions ("Claims") asserted against the iShares Funds,
including any principals, directors or trustees, officers,
employees and agents, to the extent such Claims result from
(i) a violation or alleged violation by the Investing Fund of
any provision of this Agreement or (ii) a violation or alleged
violation by the Investing Fund of the terms and conditions of
the iShares Order, such indemnification to include any
reasonable counsel fees and expenses incurred in connection
with investigating and/or defending such Claims.
The iShares Funds agree to hold harmless and indemnify an
Investing Fund, including any directors or trustees, officers,
employees and agents, against and from any Claims asserted
against the Investing Fund, including any directors or
trustees, officers, employees and agents, to the extent such
Claims result from (i) a violation or alleged violation by the
iShares Fund of any provision of this Agreement or (ii) a
violation or alleged violation by the iShares Fund of the
terms and conditions of the iShares Order, such
indemnification to include any reasonable counsel fees and
expenses incurred in connection with investigating and/or
defending such Claims.
4. Materials.
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To the extent an Investing Fund refers to one or more iShares
Funds in any prospectus, statement of additional information
or otherwise, each Investing Fund agrees to:
(a) Refer to the iShares Fund as, for example, the "iShares
(R) [Index] Fund"; and
(b) Include the following notice within reasonable proximity
to the reference to the Fund:
iShares(R) is a registered trademark of Barclays Global
Investors, N.A. ("BGI"). Neither BGI nor the iShares(R)
Funds make any representations regarding the advisability
of investing in Phoenix-S&P Dynamic Asset Allocation:
Moderate, Phoenix-S&P Dynamic Asset Allocation: Moderate
Growth, Phoenix-S&P Dynamic Asset Allocation: Growth, and
Phoenix-S&P Dynamic Asset Allocation: Aggressive Growth.
5. Notices.
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All notices, including all information that either party is
required to provide under the terms of this Agreement and the
terms and conditions of the iShares Order, shall be in writing
and shall be delivered by registered or overnight mail,
facsimile, or electronic mail to the address for each party
specified below (which address may be changed from time to
time by written notice to the other party).
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If to the Investing Fund:
Xxxxxxxx X. XxXxx,
Vice President, Chief Legal Officer,
Counsel and Secretary
c/o The Phoenix Edge Series Fund
Xxx Xxxxxxxx Xxx, X-00X
Xxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Email: Xxxxxxxx.XxXxx@xxxxxxxxx.xxx
If to the iShares Funds:
Xxxxx Xxxxxxx
U.S. Legal Group
Barclays Global Investors, N.A.
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxx.xxxxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxx Xxxxx
U.S. Compliance Group
Barclays Global Investors, N.A.
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
6. Termination; Governing Law.
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(a) This Agreement will continue until terminated in writing
by either party upon sixty (60) days' notice to the other
party, provided, however, that the obligation of an Investing
Fund in Section 2(d) above shall survive the termination of
this Agreement. This Agreement may not be assigned by either
party without the prior written consent of the other.
(b) This Agreement will be governed by Delaware law without
regard to choice of law principles.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
The Phoenix Edge Series Fund, on behalf of itself or each of its series listed
on Schedule A
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Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
ISHARES, INC., on
behalf of each of its series
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
ISHARES TRUST, on
behalf of each of its series
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
ACKNOWLEDGEMENT:
By: Phoenix Variable Advisors, Inc.
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Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
By: Standard & Poor's Investment Advisory Services LLC.
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Name: Xxxxxx X. Xxxxxxx
Title: President
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SCHEDULE A
The Phoenix Edge Series Fund on behalf of:
Phoenix-S&P Dynamic Asset Allocation Series: Moderate
Phoenix-S&P Dynamic Asset Allocation Series: Moderate Growth
Phoenix-S&P Dynamic Asset Allocation Series: Growth
Phoenix-S&P Dynamic Asset Allocation Series: Aggressive Growth
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