EXHIBIT 23 (d) 2 (13)
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT
THE PHOENIX EDGE SERIES FUND
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
Standard & Poor's Investment Advisory Services LLC
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
AGREEMENT dated as of May 1, 2006 (the "Effective Date") by and between
Phoenix Variable Advisors, Inc. (the "Advisor"), a corporation organized under
the laws of the State of Delaware, and Standard & Poor's Investment Advisory
Services LLC (the "Subadvisor"), a limited liability company organized under the
laws of the State of Delaware.
WHEREAS, The Phoenix Edge Series Fund (the "Fund") is a diversified
open-end investment company of the series type registered under the Investment
Company Act of 1940, as amended, (the "1940 Act"); and
WHEREAS, the shares of the Fund may be offered in one or more separate
series, including the 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 and Phoenix-S&P Dynamic Asset Allocation
Series: Aggressive Growth (collectively, the "Designated Series"); and
WHEREAS, the Advisor has entered into an Investment Advisory Agreement
("Advisory Agreement") with the Fund pursuant to which the Advisor acts as
investment advisor to the Fund on behalf of one or more separate series of the
Fund, including the Designated Series; and
WHEREAS, pursuant to the Advisory Agreement, the Advisor renders certain
investment advisory services to the Fund on behalf of the Designated Series,
including providing general oversight of the Designated Series, and evaluating,
recommending and monitoring one or more registered investment advisors to serve
as subadvisor to the Designated Series; and
WHEREAS, the Advisor desires, with the approval of the Board of Trustees of
the Fund (the "Trustees"), to retain the Subadvisor to furnish investment
recommendations to the Advisor for the Designated Series; and
WHEREAS, the Advisor has agreed to perform the services of investment
advisor to the Fund, the assets of which will be principally invested in
exchange-traded funds the shares of which are traded on one or more U.S.
securities exchanges ("ETFs");
WHEREAS, pursuant to its agreements with the Fund, the Advisor has, or will
have, full discretion, subject to the Fund's stated fundamental investment
policies and objectives, with respect to the investment of the assets of the
Fund and with respect to certain related matters;
WHEREAS, the Subadvisor is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW THEREFORE, the Advisor and the Subadvisor agree as follows:
1. Employment as a Subadvisor. The Advisor, being duly authorized, hereby
appoints the Subadvisor to serve as subadvisor with regard to the assets of
the Designated Series (the "Assets"), subject to the terms and conditions
set forth in this Agreement.
2. Acceptance of Employment; Standard of Performance. The Subadvisor accepts
its engagement as a subadvisor of the Designated Series and agrees to use
its best professional judgment to make investment recommendations and
provide related services for the Designated Series in accordance with the
terms and conditions set forth in this Agreement and as set forth in
Schedule B attached hereto and made a part hereof.
(a) It will be the responsibility of the Advisor to accept, reject, or
modify the Subadvisor's buy and sell recommendations for the
Designated Series, calculate, arrange and execute purchases and
redemptions of the appropriate number of underlying fund shares to
effect the recommendations it accepts from the Subadvisor, execute
all portfolio transactions for the Designated Series, direct all
incoming cash, and provide all required financial reporting; and
(b) The Subadvisor will report regularly to the Advisor and Board of
Trustees and will review with representatives of the Advisor and
the Board of Trustees at reasonable times the management of the
Designated Series, including, without limitation, review of the
general investment strategies of the Designated Series, the
performance of the Designated Series in relation to standard
industry indices, interest rate considerations and general
conditions affecting the marketplace and will provide various
other reports from time to time as reasonably requested by the
Advisor.
3. Management. Subject always to the supervision of the Fund's Board of
Trustees and the Advisor, the Subadvisor will make investment
recommendations for the Designated Series. In the performance of its
duties, the Subadvisor will satisfy its fiduciary duties to the Designated
Series (as set forth below), will monitor the Designated Series's
investments, and will comply with the stated investment objectives,
policies and restrictions of the Designated Series. The Subadvisor and the
Advisor agree that the Subadvisor will not have investment discretion. The
Subadvisor and the Advisor each will make its officers and employees
available to the other from time to time at reasonable times to review
investment policies of the Designated Series and to consult with each other
regarding the investment affairs of the Designated Series. The Subadvisor
will report to the Board of Trustees and to the Advisor with respect to the
investment
recommendations. The Subadvisor is responsible for compliance with the
provisions of Section 817(h) of the Internal Revenue Code of 1986 as
amended, applicable to the Designated Series; provided, however, that the
Subadvisor shall not be responsible where the non-compliance of the fund
with Section 817(h) of the Internal Revenue Code of 1986, as amended, is
directly caused by the failure of a registered investment company in
which the Designated Series invests to comply with such Section.
4. Exclusivity. The parties acknowledge and agree that the services of the
Subadvisor hereunder are not deemed exclusive and that, accordingly, the
Subadvisor may render services to others so long as those services do not
in any material manner impair the ability of the Subadvisor to perform its
duties and obligations pursuant to this Agreement.
5. Activities of the Subadvisor. The Advisor and the Fund recognize that the
Subadvisor and its affiliates, officers, directors and employees may have
investments of their own, may be acting as investment advisor or manager
for others and may be providing research and analytical support for others,
all in the normal course of their business. The Advisor also recognizes
that the Subadvisor and its affiliates, officers, directors and employees
may be or become associated with other investment entities and engage in
investment management and research and analytical services for others in
the future. Except to the extent necessary to perform its obligations
hereunder, nothing herein shall be deemed to limit or restrict the right of
the Subadvisor and its affiliates, officers, directors and employees to
engage in, or to devote time and attention to the management of or the
provision of research and other services to any other business, whether of
a similar or dissimilar nature, or to render services of any kind to any
other corporation, firm, individual or association. The Advisor and the
Fund acknowledge that the Subadvisor and its affiliates, officers,
directors and employees and other clients may hold substantial positions in
the ETFs that are owned by the Designated Series and that the Subadvisor
may on occasion give advice or take action with respect to those positions
or clients that differs from the advice and information given to the
Advisor. The Advisor further acknowledges that Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. and an affiliated business
of the Subadvisor ("S&P"), has a financial interest in certain ETFs
that are based on S&P's proprietary indices by virtue of licensing
relationships between S&P and the sponsor of the ETF that result in the
payment of licensing fees to S&P that are based, in whole or in part,
on the assets under management in the ETF. The Advisor agrees to
disclose the foregoing to investors and prospective investors in
the Fund and that its indemnification obligations to the Subadvisor
hereunder extend, without limitation, to any third party claim, action
or proceeding against the Subadvisor that is based on an allegation
that the Subadvisor's judgment in performing its services to the
Advisor hereunder was affected by S&P's financial interest in certain
ETFs that the Subadvisor recommended.
6. Expenses. During the term of this Agreement, the Subadvisor shall bear all
expenses incurred by it in connection with providing its services
hereunder. Without limiting the foregoing, the parties acknowledge and
agree that the Subadvisor shall furnish at its own expense, or pay the
expenses of the Advisor, for the following items:
(a) Office facilities, including office space, furniture and equipment
utilized by the Subadvisor's employees in the fulfillment of its
duties and obligations under this Agreement; and
(b) Personnel and services necessary to perform the functions required to
fulfill the duties and obligations of the Subadvisor hereunder.
7. Fees for Services. The compensation of the Subadvisor for its services
under this Agreement shall be calculated and paid by the Advisor in
accordance with the attached Schedule A. Pursuant to the Advisory Agreement
between the Fund and the Advisor, the Advisor shall be solely responsible
for the payment of fees to the Subadvisor.
8. Limitation of Liability. The Subadvisor shall not 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 Fund, so long
as such acts or omissions shall not have constituted a breach of the
investment objectives, policies and restrictions applicable to the
Designated Series and such acts or omissions shall not have resulted from
the Subadvisor's willful misfeasance, bad faith, reckless disregard or
gross negligence, a violation of the standard of care established by and
applicable to the Subadvisor in its actions under this Agreement or a
breach of its duty or of its obligations hereunder (provided further,
however, that the foregoing shall not be construed to protect the
Subadvisor from liability under the 1940 Act, other federal or state
securities laws or common law).
9. Indemnification.
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(a) The Advisor agrees to indemnify and hold harmless the Subadvisor, its
officers and directors, and any person who "controls" the Subadvisor,
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) suffered by Subadvisor resulting from (i) the
Advisor's breach of any provision of this Agreement, (ii) willful
misfeasance, bad faith, reckless disregard or gross negligence on the
part of the Advisor or any of its officers, directors or employees in
or relating to the performance of the Advisor's duties and
obligations under this Agreement or (iii) any untrue statement or
alleged untrue statement of a material fact contained in the
Prospectus 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 Subadvisor or any
affiliated person of the Subadvisor, expressly for use therein or
other than upon verbal information confirmed by the Subadvisor in
writing expressly for use therein.
In no case shall the Advisor's indemnity in favor of the Subadvisor
or any affiliated person or controlling person of the Subadvisor, 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 Subadvisor agrees to indemnify and hold harmless the Advisor,
its officers and directors, and any person who "controls" the
Advisor, 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) suffered by Advisor
resulting from (i) the Subadvisor's breach of its duties under this
Agreement, (ii) willful misfeasance, bad faith, reckless disregard
or gross negligence on the part of the Subadvisor or any of its
officers, directors or employees in the performance of the
Subadvisor's duties and obligations under this Agreement or (iii)
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus 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 Subadvisor to the Advisor,
the Fund or any affiliated person of the Advisor or the Fund
expressly for use in the Fund's registration statement, or upon
verbal information confirmed by the Subadvisor in writing expressly
for use in the Fund's registration statement.
In no case shall the Subadvisor's indemnity in favor of the Advisor
or any affiliated person or controlling person of the Advisor, 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.
(c) No party shall be obligated under this Section 9 to make any payment
in respect of a settlement, compromise of claim, entry of judgment of
any pending or threatened claim to which such party has not
consented, such consent not to be unreasonably withheld or delayed.
(d) Promptly after receipt of notice of any claim or complaint or the
commencement of any action or proceeding with respect to which the
Advisor or the Subadvisor is entitled to seek indemnification
hereunder, the indemnified party will notify the indemnifying party
in writing of such claim or complaint or of the commencement of such
action or proceeding. If the indemnifying party so elects, the
indemnifying party will assume the defense of such action or
proceeding, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of fees and
disbursements of such counsel, and the indemnifying party will not
thereafter be liable to the indemnified party for any additional
expenses. In the event, however, such counsel has a conflict of
interest or if the indemnifying party fails to employ counsel
reasonably satisfactory to the indemnified party in either case in a
timely manner, then the indemnified party
may employ separate counsel to represent or defend it in any such
action or proceeding and the indemnifying party will pay the
reasonable fees and disbursements of such counsel. In any action or
proceeding the defense of which the indemnifying party assumes, the
indemnified party will have the right to participate in such
litigation and retain counsel at its own expense.
10. Insurance. The Subadvisor shall, during the term of this Agreement, at its
own expense, maintain liability and errors and omissions insurance coverage
in an amount deemed reasonable by the Trustees of the Fund.
11. No Personal Liability. Reference is hereby made to the Declaration of
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 or hereafter so filed with the
Secretary of the Commonwealth of Massachusetts and elsewhere as required by
law. The name The Phoenix Edge Series Fund refers to the Trustees under
said Declaration of Trust, as amended, as Trustees and not personally, and
no Trustee, shareholder, officer, agent or employee of the Fund shall be
held to any personal liability in connection with the affairs of the Fund;
only the Fund estate under said Declaration of Fund is liable. Without
limiting the generality of the foregoing, neither the Subadvisor 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
Fund or of any successor of the Fund, whether such liability now exists or
is hereafter incurred for claims against the Fund estate other than by
reason of such person's own willful misfeasance, bad faith or gross
negligence in the performance of his or its duties or by reason of his or
its reckless disregard of its obligations and duties to the Fund and the
Designated Series.
12. Confidentiality. Subject to the duty of the Advisor or the Subadvisor 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 Designated Series and the
actions of the Subadvisor and the Fund in respect thereof. It is understood
that any information or recommendation supplied by the Subadvisor in
connection with the performance of its obligations hereunder is to be
regarded as confidential and for use only by the Advisor, the Fund or such
persons as the Advisor may designate in connection with the Designated
Series who have agreed to maintain the confidentiality of all such
information. It is also understood that any information supplied to the
Subadvisor in connection with the performance of its obligations hereunder,
particularly, but not limited to, any list of investments which, on a
temporary basis, may not be bought or sold for the Designated Series, is to
be regarded as confidential and for use only by the Subadvisor in
connection with its obligation to provide investment advice to the
Designated Series. 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 Advisor, and that the
Subadvisor shall use that information solely in the performance of its
duties and obligations under this Agreement and shall takes reasonable
steps to safeguard the confidentiality of that information. Further, the
Advisor and the Subadvisor shall maintain and enforce adequate
security procedures with respect to all materials, records, documents and
data relating to any of their responsibilities pursuant to this Agreement.
The term "proprietary information" does not include information which (i)
is or becomes generally available to the public other than as a result of a
disclosure directly or indirectly by the recipient; (ii) was within the
recipient's possession before it was furnished to the recipient by or on
behalf of the disclosing party pursuant hereto, provided that the source of
such information was not bound by a confidentiality agreement with, or
other contractual, legal or fiduciary obligation of confidentiality to, the
disclosing party or any other party with respect to such information.
13. Assignment. This Agreement shall terminate automatically in the event of
its "assignment," as that term is defined in Section 2(a)(4) of the 1940
Act and Rule 2a-6 thereunder. The Subadvisor shall provide the Advisor with
reasonable advance written notice of any proposed change of "control," as
defined in Section 2(a)(9) of the 1940 Act, as will enable the Advisor to
consider whether an assignment as defined in Section 2(a)(4) of the 1940
Act will occur and to take the steps it deems necessary.
14. Representations, Warranties and Agreements of the Subadvisor. The
Subadvisor represents, warrants and agrees that:
(a) It is registered as an "investment adviser" under the Investment
Advisers Act of 1940 ("Advisers Act") and will maintain such status so long
as this Agreement remains in effect.
(b) It shall comply with any other applicable federal or state
requirements, and the applicable requirements of any regulatory or
self-regulatory agency, necessary to be met for its performance of the
services contemplated by this Agreement so long as this Agreement remains
in effect.
(c) It is not prohibited by the 1940 Act, the Advisers Act or other
applicable federal or state law from performing the services contemplated
by this Agreement.
(d) It is duly organized and validly existing under the laws of the
State in which it was organized with the power to own and possess its
assets and carry on its business as it is now being conducted.
(e) It has the power and has taken all necessary action, and has
obtained all necessary licenses, authorizations and approvals, to execute
this Agreement, which Agreement constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, to enter into and
perform the services contemplated by this Agreement; and the execution,
delivery and performance by it of this Agreement does not contravene or
constitute a default under any agreement binding upon it.
(f) It will promptly notify the Advisor of the occurrence of any
event that would disqualify it from serving as an investment advisor to an
investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(g) It has a written code of ethics complying with the requirements
of Rule 17j-l under the 1940 Act and Rule 204A-1 of the Advisers Act and
will provide the Advisor with a copy of the code of ethics and evidence of
its adoption. The Subadvisor acknowledges receipt of the written code of
ethics adopted by and on behalf of the Fund (the "Code of Ethics"). It will
not be subject to the Code of Ethics during the term of this Agreement so
long as its code of ethics complies with applicable regulatory requirements
and has been approved by the Trustees. Within 10 days of the end of each
calendar quarter while this Agreement is in effect, a duly authorized
compliance officer of the Subadvisor shall certify to the Fund and to the
Advisor that, to the best of such compliance officer's knowledge, the
Subadvisor has complied with the requirements of Rules 17j-l and 204A-1 of
the Advisers Act during the previous calendar quarter and that there has
been no violation of its code of ethics, or the Code of Ethics, as the case
may be, or if such a violation has occurred, that appropriate action was
taken in response to such violation. The Subadvisor shall permit the Fund
and the Advisor to examine the reports made by the Subadvisor under Rule
17j-l(c)(2) or as required by law.
(h) It will use all necessary efforts to make investment
recommendations to the Designated Series that are consistent with the
diversification and minimum "good income" requirements of Subchapter M and
the diversification requirements of Section 817(h) of the Internal Revenue
Code of 1986, as amended.
(i) It has furnished a true and complete copy of its registration
statement as filed with the Securities and Exchange Commission (the
"Commission") on Form ADV to the Advisor and will furnish promptly such
updated copies of its registration statement or amendments thereto as are
filed with the Commission from time to time.
(j) It will furnish to the Advisor true and complete copies of
reports or other documents as may be reasonably requested by the Advisor in
connection with the performance of the Subadvisor's duties and obligations
under this Agreement.
(k) It will furnish or otherwise make available to the Advisor such
other information relating to the business affairs of the Subadvisor or the
management of the Designated Series as the Advisor at any time, or from
time to time, reasonably requests in connection with the Advisor's or
Subadvisor's performance of its respective obligations hereunder; subject,
however, to the Subadvisor's right to retain all such records as the
Subadvisor is required to maintain under the Advisers Act and the rules and
regulations promulgated thereunder; provided, further, that the Fund and
the Advisor shall be entitled to make and maintain copies of any records so
retained by the Subadvisor.
(l) The Subadvisor 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 Form
N-CSR as required under the Xxxxxxxx-Xxxxx Act of 2002 in the form
presented in Schedule C attached hereto and made a part hereof.
(m) 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 Subadvisor and
its supervised persons, and, to the extent the activities of the Subadvisor
in respect to the Fund could affect the Fund, by the Fund, of "federal
securities laws" (as defined in Rule 38a-1 under the Act), and that the
Subadvisor has provided the Fund with true and complete copies of its
policies and procedures (or summaries thereof) and related information
requested by the Fund. The Subadvisor agrees to cooperate with periodic
reviews by the Fund's compliance personnel of the Subadvisor's policies and
procedures, their operation and implementation and other compliance matters
and to provide to the Fund from time to time such additional information
and certifications with respect to the Subadvisor's policies and
procedures, compliance with federal securities laws, and related matters.
The Subadvisor agrees to promptly notify the Advisor of any material
compliance violations that affect the Designated Series.
(n) It will provide the requisite certifications required under the
Designated Series procedures related to their Order for Exemption from
Section 17(a) and 12(d) of the 1940 Act, as set forth in Schedule D.
15. Representations, Warranties and Agreements of the Advisor. The Advisor
represents, warrants and agrees that:
(a) It is registered as an "investment adviser" under the Advisers
Act.
(b) It shall continue to meet any other applicable federal or state
requirements, or the applicable requirements of any regulatory or
self-regulatory agency, necessary to be met for its performance of the
services contemplated by this Agreement so long as this Agreement remains
in effect.
(c) It is not prohibited by the 1940 Act, the Advisers Act or other
applicable federal or state law from performing the services contemplated
by this Agreement.
(d) It is duly organized and validly existing under the laws of the
State in which it was organized with the power to own and possess its
assets and carry on its business as it is now being conducted.
(e) It has the power and has taken all necessary action, and has
obtained all necessary licenses, authorizations and approvals, to execute
this Agreement, which Agreement constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, to enter into and
perform the services contemplated by this Agreement; and the execution,
delivery and performance by it of this Agreement does not contravene or
constitute a default under any agreement binding upon it.
(f) It has delivered, or will before the effective date of this
Agreement deliver, to the Subadvisor true and complete copies of (i) the
Prospectus, (ii) the Declaration of Trust, as amended, and (iii) any other
documents or instruments governing the investments and investment policies
and practices of the Designated Series applicable to the Subadvisor's
duties and obligations hereunder, and during the term of this Agreement
will promptly deliver to the Subadvisor true and complete copies of all
documents and
instruments supplementing, amending, or otherwise becoming such
documents or instruments before or at the time they become effective.
(g) It will furnish or otherwise make available to the Subadvisor
such other information relating to the business affairs of the Fund as the
Subadvisor at any time, or from time to time, reasonably requests in order
to discharge its obligations hereunder.
16. Representations, Warranties and Agreements of the Fund. By their approval
of this Agreement the Trustees represent, warrant and agree that:
(a) The Fund is not prohibited by the 1940 Act or other applicable
federal or state law from performing its obligations under this Agreement.
(b) The Fund is duly organized and validly existing under the laws of
the State in which it was organized with the power to own and possess its
assets and carry on its business as it is now being conducted.
(c) The Fund has taken all necessary action, and has obtained all
necessary licenses, authorizations and approvals, to permit the Fund to
enter into this Agreement, which Agreement constitutes the Fund's legal,
valid and binding obligation, enforceable in accordance with its terms; and
the execution, delivery and performance by the Fund of this Agreement does
not contravene or constitute a default under any agreement binding upon the
Fund.
17. Reports. The Subadvisor shall provide the Advisor and the Trustees such
periodic and special reports as the Advisor may reasonably request. The
Subadvisor agrees that such records are the property of the Fund, and shall
be made reasonably available for inspections, and by the Fund or by the
Advisor as agent of the Fund, and promptly upon request surrendered to
either. Without limiting the generality of the foregoing, the parties agree
and acknowledge that the Subadvisor shall provide the following items:
(a) Quarterly reports, in form and substance acceptable to the
Advisor, including but not limited to reports with respect to: (i)
compliance with the Subadvisor's code of ethics; (ii) diversification of
Designated Series assets in accordance with the then governing laws and
prevailing Prospectus pertaining to the Designated Series; and (iii) any
and all other reports reasonably requested in accordance with or described
in this Agreement.
(b) Annual or other periodic reports, in form and substance
acceptable to the Advisor, including but not limited reports with respect
to: (i) analyses of Designated Series performance; (ii) disclosure related
to the investment advice provided by the Subadvisor with respect to the
Designated Series and the Subadvisor as may be contained in the Prospectus
or marketing materials as amended, supplemented or otherwise updated from
time to time; (iii) compliance with the Subadvisor's code of ethics
pursuant to Rule 17j-1; and (iv) such compliance certifications as may be
reasonably requested.
(c) The parties acknowledge and agree that the Subadvisor is
authorized to supply the Fund's independent registered public accounting
firm, or any successor
accountant for the Fund, any information that they may request in
connection with the Fund.
(d) In addition, the Subadvisor shall immediately notify and forward
to both the Advisor and any legal counsel for the Designated Series whose
identity has been provided to the Subadvisor any legal process served upon
it on behalf of the Advisor or the Fund. The Subadvisor shall promptly
notify the Advisor of any changes in any information concerning the
Subadvisor of which the Subadvisor becomes aware that is or would be
required to be disclosed in the Fund's registration statement.
18. Amendment. This Agreement may be amended at any time, but only by written
agreement between the Subadvisor and the Advisor, which amendment, other
than amendments to Schedule A, B, C, or D is subject to the approval of the
Trustees and the Shareholders of the Designated Series as and to the extent
required by the 1940 Act.
19. Effective Date; Term. This Agreement shall become effective on the date set
forth on the first page of this Agreement. Unless terminated as hereinafter
provided, this Agreement shall remain in full force and effect until
November 30, 2007, and thereafter only so long as its continuance has been
specifically approved at least annually in accordance with Sections 15(a)
and (c) of the 1940 Act and the Rules promulgated thereunder.
20. Notices. Except as otherwise provided in this Agreement, all notices or
other communications required of or permitted to be given hereunder shall
be in writing and shall be delivered or sent by (i) confirmed facsimile,
(ii) registered, certified or overnight mail, or (iii) a nationally
recognized overnight courier, to the following addresses or to such other
address as the relevant addressee shall hereafter provide for such purpose
to the other by notice in writing and shall be deemed to have been given at
the time of delivery.
If to the Advisor: PHOENIX VARIABLE ADVISORS, INC.
One American Row
Hartford, Connecticut
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxxx.Xxxxxx@xxxxxxxxx.xxx
If to the Subadvisor: STANDARD & POOR'S INVESTMENT ADVISORY SERVICES LLC
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxx_xxxxxxx@xxxxxxxxxxxxxxxx.xxx
21. Termination This Agreement shall terminate immediately in the event of its
assignment, as specified above in Section 13 of this Agreement. This
Agreement may be terminated
by either party, without penalty, immediately upon written notice to the
other party in the event of a breach of any provision thereof by the party
so notified, or otherwise, by the Advisor, Subadvisor, Board of Trustees of
the Fund or vote of a majority of the outstanding voting securities of the
Designated Series upon sixty (60) days' written notice to the other party.
Notwithstanding such termination, any liability of a party to any other
party under this Agreement shall survive and remain in full force and
effect with respect to any claim or matter on which any party has given
written notice to any other party prior to termination and until such
liability has been finally settled.
22. 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 State of
New York, without giving effect to the conflicts of laws principles
thereof.
23. 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.
24. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to the subject matter of this
Agreement.
25. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all such counterparts shall
constitute a single instrument.
(signature page to follow)
--------------------------
STANDARD & POOR'S INVESTMENT ADVISORY SERVICES LLC
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
PHOENIX VARIABLE ADVISORS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
ACCEPTED:
THE PHOENIX EDGE SERIES FUND
By: /s/ Xxxx Xxxxxxx X'Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
SCHEDULES: A. Fee Schedule
B. Subadvisor Functions
C. Form of Sub-Certification
D. Form of Fund of Funds Compliance Procedure
SCHEDULE A
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SUBADVISORY FEE
For services provided to the Fund, the Advisor will pay to the Subadvisor, on an
annual basis, the annual rate stated below applied against the net assets of
each Designated Series (the "Annual Fee"), less any amounts received by the
Subadvisor or any affiliated person of the Subadvisor with respect to licensing
fees received from any ETF or ETF sponsor attributable to investments of the
Designated Series in an ETF. The fees shall be prorated for any month during
which this Agreement is in effect for only a portion of the month during which
the Subadvisory Agreement is in effect. In computing the Annual Fee to be paid
to the Subadvisor, the net asset value of the Fund of each Designated Series
shall be valued as set forth in the then current registration statement of the
Fund, payable on or before the 10th day of each month, payable in arrears. The
Annual Fee that has been paid on a monthly basis will be adjusted to the actual
Annual Fee, once annually within 15 business days of the close of the fiscal
year.
Phoenix-S&P Dynamic Asset Allocation Series: Moderate 0.12%
Phoenix-S&P Dynamic Asset Allocation Series: Moderate Growth 0.12%
Phoenix-S&P Dynamic Asset Allocation Series: Growth 0.12%
Phoenix-S&P Dynamic Asset Allocation Series: Aggressive Growth 0.12%
The fee to be paid to the Subadvisor will be calculated based on the average
daily net assets of the: 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, and the Phoenix-S&P Dynamic Asset
Allocation Series: Aggressive Growth, and individually, for the respective
month, or shorter period during which the Subadvisory Agreement is in effect.
SCHEDULE B
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SUBADVISOR FUNCTIONS
With respect to managing the investment and reinvestment of the Designated
Series' assets, the Subadvisor shall provide, at its own expense:
(a) Investment recommendations for the Designated Series consistent with
its investment objectives;
(b) Quarterly reports, in form and substance acceptable to the Adviser,
with respect to: (i) compliance with the Code of Ethics; (ii) any and
all other reports reasonably requested in accordance with or described
in this Agreement; and (iii) explanation of the investment
recommendations for the Designated Series, including, without
limitation, analysis of Designated Series performance;
(c) Promptly after filing with the Securities and Exchange Commission an
amendment to its Form ADV, a copy of such amendment to the Advisor and
the Fund;
(d) Attendance by appropriate representatives of the Subadvisor at meetings
requested by the Adviser or Trustees at such time(s) and location(s) as
reasonably requested by the Adviser or Trustees, such meetings being
expected to occur annually; and
(e) Notice to the Trust and the Advisor of the occurrence of any event
which would disqualify the Subadvisor from serving as an investment
adviser to an investment company pursuant to Section 9(a) of the 1940
Act or otherwise.
SCHEDULE C
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FORM OF SUB-CERTIFICATION
To:
Re: Sub-Advisor's Form N-CSR Certification for The Phoenix Edge Series Fund
(the "Fund").
From: Standard & Poor's Investment Advisory Services LLC
Representations in support of Investment Company Act Rule 30b2-1 certifications
of Form N-CSR (collectively, the "Series).
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
I certify that to the best of my knowledge:
a. The Portfolio Manager (or whoever at S&P establishes or recommends
investment advice, holdings, allocations or strategies to the
Series') has complied with the restrictions and reporting
requirements of the Code of Ethics applicable to the subadvisor as
specified in the subadvisory agreement for the Fund (the "Code"). The
term Portfolio Manager is as defined in the Code.
b. The subadvisor has complied with the prospectus and SAI of the Fund
and the Policies and Procedures of the Fund as adopted by the Board
of Trustees, if disclosed to the subadvisor.
c. I have no knowledge of any compliance violations relating to the Fund
except as disclosed in writing to the Phoenix Compliance Department
by me or by the subadvisor's compliance administrator.
d. The subadvisor has complied with the rules and regulations of the
1933 Act and 1940 Act, and such other regulations as may apply to the
extent those rules and regulations pertain to the responsibilities of
the subadvisor with respect to the Fund as outlined above.
e. 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 subadvisor to the Series.
This certification relates solely to the Fund named above and may not be relied
upon by any other Fund or entity.
The subadvisor does not maintain the official books and records of the Fund. The
subadvisor's records are based on its own portfolio management system, a
record-keeping system that is not intended to service as the Fund's official
accounting system. The subadvisor is not responsible for the preparation of the
Form N-CSR.
The Subadvisor makes investment recommendations to the Advisor, which accepts,
rejects, or modifies the Subadvisor's recommendations.
BY:
---------------------------------------------------------
NAME: [Name of Authorized Signer]
-------------------------------------------------------
TITLE:
------------------------------------------------------
DATE:
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SCHEDULE D
THE PHOENIX EDGE SERIES FUND (THE "TRUST")
FORM OF FUND OF FUNDS COMPLIANCE PROCEDURES
1. Phoenix Variable Advisors, Inc. (the "Manager"), the Manager's
affiliates, the funds of funds (the "Funds"), and any other funds or separate
accounts advised or sponsored by the Manager or its affiliates (the "Group") may
not purchase shares of an unaffiliated underlying fund ("Unaffiliated Fund") if
as a result of such purchase the members of the Group (either individually or in
the aggregate) would own 25% or more of such fund's shares. Similarly, the
Fund's subadviser, Standard & Poor's Investment Advisory Services (the
"Sub-Adviser"), the Sub-Adviser's affiliates, and any funds or other investment
companies advised by the Sub-Adviser or its affiliates (the "Sub-Adviser Group")
may not purchase shares of an Unaffiliated Fund if as a result of such purchase
the members of the Sub-Adviser Group (either individually or in the aggregate)
would own 25% or more of such fund's shares. The Manager shall monitor the
Funds' purchases to ensure no such purchases are made. In addition, the Manager
shall periodically monitor the Funds' investments in Unaffiliated Funds to
ensure that if as a result of a decrease in the outstanding voting securities of
an Unaffiliated Fund, the Group or the Sub-Adviser Group, each in the aggregate,
becomes a holder of more than 25% of the outstanding voting securities of the
Unaffiliated Fund, the voting requirements imposed by the conditions set forth
at Exhibit B are followed.
2. The Manager and Sub-Adviser may not cause any existing or potential
investment by a Fund in an Unaffiliated Fund to influence the terms of any
services or transactions between the Fund or a Fund affiliate ("Fund Affiliate")
and the Unaffiliated Fund or an Unaffiliated Fund affiliate ("Unaffiliated Fund
Affiliate"). The Manager shall monitor to ensure and certify quarterly to the
Board that the Manager has not caused any existing or potential investment by a
Fund in an Unaffiliated Fund to influence the terms of any services or
transactions between the Fund or a Fund Affiliate and the Unaffiliated Fund or
an Unaffiliated Fund Affiliate. The Sub-Adviser shall monitor to ensure and
certify quarterly to the Manager that the Sub-Adviser has not caused any
existing or potential investment by a Fund in an Unaffiliated Fund to influence
the terms of any services or transactions between the Fund or a Fund Affiliate
and the Unaffiliated Fund or an Unaffiliated Fund Affiliate.
3. The Manager and the Sub-Adviser shall conduct the investment program
of the Funds without taking into account any consideration received by a Fund or
a Fund Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate in
connection with any services or transactions. Representatives of the Manager
shall monitor to ensure, and the Manager shall certify quarterly to the Board,
that the Manager has so conducted the investment program. Representatives of the
Sub-Adviser shall monitor to insure and the Sub-Adviser shall certify quarterly
to the Manager that the Sub-Adviser has so conducted the investment program.
4. Certain conditions of the Funds' exemptive relief and the exemptive
relief of the Unaffiliated Funds are operative only if an Unaffiliated Fund
purchases securities in an
"Affiliated Underwriting." As of the date of these procedures, neither the
Funds, the Manager, nor any affiliate of the Manager act as principal
underwriters in offerings of securities in which an Unaffiliated Fund would
purchase securities. Representatives of the Manager shall also confirm that as
of the date of these procedures neither the Sub-Adviser nor any affiliate of the
Sub-Adviser acts as principal underwriter in offerings of securities in which an
Unaffiliated Fund would purchase securities. Additionally, representatives of
the Manager shall annually confirm and certify to the Board that neither the
Funds, the Manager, the Sub-Adviser, nor any of their affiliates act as
principal underwriters in offerings of securities in which an Unaffiliated Fund
would purchase securities. Representatives of the Sub-Adviser shall annually
confirm and certify to the Manager that neither the Sub-Adviser nor any of its
affiliates acts as principal underwriters of securities in which an Unaffliated
Fund would purchase securities. If the Manager is unable at any time to so
confirm and certify to the Board, these compliance procedures shall be revised
to include additional procedures to ensure compliance with the Unaffiliated
Underwriting exemptive conditions.
5. A. Before the Funds rely on the exemptive order of any Unaffiliated
Fund, the Trust and the Unaffiliated Fund shall execute an agreement stating,
without limitation, that the Board, Manager and the Sub-Advisor understand the
terms and conditions of the order and agree to fulfill their responsibilities
under the order. The Trust and the Unaffiliated Fund shall maintain and preserve
a copy of the order and the agreement for a period of not less than six years
from the end of the fiscal year in which any investment occurred, the first two
years in an easily accessible place.
B. When the Funds rely on their own exemptive order from the SEC,
prior to any Fund investing in shares of an Unaffiliated Fund in excess of the
limit set forth in Section 12(d)(1)(A)(i) of the Act (e.g., if the Fund owns
more than 3 percent of the shares of the Unaffiliated Fund), the Trust and the
Unaffiliated Fund shall execute an agreement stating, without limitation, that
their boards of directors or trustees and their investment advisers understand
the terms and conditions of the order and agree to fulfill their
responsibilities under the order. At the time of its investment in shares of an
Unaffiliated Fund in excess of the limit set forth in Section 12(d)(1)(A)(i), a
Fund shall notify the Unaffiliated Fund of the investment. The Manager shall
monitor each Fund's investments to determine if it is likely that a Fund will
invest in an Unaffiliated Fund in excess of the limits of Section
12(d)(1)(A)(i).
6. Before approving any advisory contract under Section 15 of the Act,
the Board, including a majority of the Disinterested Trustees, shall find that
the advisory fees charged under the advisory contract are based on services
provided that are in addition to, rather than duplicative of, services provided
under the advisory contract(s) of any Underlying Fund in which the Fund may
invest. Such finding, and the basis upon which the finding was made, shall be
recorded fully in the minute books of the Trust.
7. The Manager shall waive fees otherwise payable to it by a Fund in an
amount at least equal to any compensation (including fees received pursuant to
any plan adopted by an Unaffiliated Fund under Rule 12b-1 under the Act)
received from an Unaffiliated Fund by the Manager, or an affiliated person of
the Manager, other than any advisory fees paid to the Manager or its affiliated
person by the Unaffiliated Fund, in connection with the investment by
the Fund in the Unaffiliated Fund. Likewise, the Sub-Adviser shall waive fees
otherwise payable to the Sub-Adviser, directly or indirectly, by a Fund in an
amount at least equal to any compensation received from an Unaffiliated Fund by
the Sub-Adviser, or an affiliated person of the Sub-Adviser, other than any
advisory fees paid to the Sub-Adviser or its affiliated person by the
Unaffiliated Fund, in connection with the investment by the Fund in the
Unaffiliated Fund made at the direction of the Sub-Adviser. In the event that
the Sub-Adviser waives fees, the benefit of the waiver will be passed through to
the Fund. The Sub-Adviser shall certify to the Manager annually that the
requirements of this Paragraph 7 have been met.
8. With respect to registered separate accounts that invest in a Fund,
no sales load may be charged at the Fund level or at the Unaffiliated Fund
level. Other sales charges and service fees, as defined in rule 2830 of the
Conduct Rules of the NASD (generally, these fees refer to Rule 12b-1 fees and
shareholder services fees), if any, may only be charged at the Fund level or at
the Unaffiliated Fund level, not both. Because the Funds charge Rule 12b-1 fees,
this effectively prohibits a Fund from investing in an Underlying Fund that
charges Rule 12b-1 fees. With respect to other investments in a Fund (and at any
time while the Funds are relying on the exemptive order of any Unaffiliated
Fund, with respect to registered separate accounts that invest in the Fund), any
sales charges and/or service fees charged with respect to shares of a Fund may
not exceed the limits applicable to funds of funds set forth in rule 2830 of the
Conduct Rules of the NASD. The Manager shall certify to the Board annually that
the requirements of this Paragraph 8 have been met.
