EXHIBIT 99.d.3
FORM OF INVESTMENT ADVISORY AGREEMENT
PHOENIX-XXXXXXXX FUNDS
FORM OF INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, effective as of the ____ day of ____________, 2005 (the
"Contract Date") by and between Phoenix-Xxxxxxxx Funds, a Delaware business
trust (the "Trust") and Phoenix Investment Counsel, Inc., a Connecticut
corporation (the "Adviser").
WITNESSETH THAT:
1. The Trust hereby appoints the Adviser to act as investment adviser
to the Trust on behalf of the portfolio series of the Trust established and
designated by the Board of Trustees of the Trust (the "Trustees") on or before
the date hereof, as listed on attached Schedule A (collectively, the "Existing
Series"), for the period and on the terms set forth herein. The Adviser accepts
such appointment and agrees to render the services described in this Agreement
for the compensation herein provided.
2. In the event that the Trustees desire to retain the Adviser to
render investment advisory services hereunder with respect to one or more of the
additional series (the "Additional Series"), by agreement in writing, the Trust
and the Adviser may agree to amend Schedule A to include such Additional Series,
whereupon such Additional Series shall become subject to the terms and
conditions of this Agreement.
3. The Adviser shall furnish continuously an investment program for the
portfolio of the Existing Series and the portfolio of any Additional Series
which may become subject to the terms and conditions set forth herein (sometimes
collectively referred to as the "Series") and shall manage the investment and
reinvestment of the assets of the portfolio of each Series, subject at all times
to the supervision of the Trustees.
4. With respect to managing the investment and reinvestment of the
portfolio of the Series' assets, the Adviser shall provide, at its own expense:
(a) Investment research, advice and supervision;
(b) An investment program for each Series consistent with its
investment objectives, policies and procedures;
(c) Implementation of the investment program for each Series
including the purchase and sale of securities;
(d) Implementation of an investment program designed to manage
cash, cash equivalents and short-term investments for a
Series with respect to assets designated from time to time
to be managed by a subadviser to such Series;
(e) Advice and assistance on the general operations of
the Trust; and
(f) Regular reports to the Trustees on the implementation of
each Series' investment program.
5. The Adviser shall, for all purposes herein, be deemed to be an
independent contractor.
6. The Adviser shall furnish at its own expense, or pay the expenses of
the Trust, for the following:
(a) Office facilities, including office space, furniture and
equipment;
(b) Personnel necessary to perform the functions required to
manage the investment and reinvestment of each Series'
assets (including those required for research, statistical
and investment work);
(c) Except as otherwise approved by the Board, personnel to
serve without salaries from the Trust as officers or agents
of the Trust. The Adviser need not provide personnel to
perform, or pay the expenses of the Trust for, services
customarily performed for an open-end management investment
company by its national distributor, custodian, financial
agent, transfer agent, registrar, dividend disbursing
agent, auditors and legal counsel;
(d) Compensation and expenses, if any, of the Trustees who are
also full-time employees of the Adviser or any of its
affiliates; and
(e) Any subadviser recommended by the Adviser and appointed to
act on behalf of the Trust.
7. All costs and expenses not specifically enumerated herein as payable
by the Adviser shall be paid by the Trust. Such expenses shall include, but
shall not be limited to, all expenses (other than those specifically referred to
as being borne by the Adviser) incurred in the operation of the Trust and any
public offering of its shares, including, among others, interest, taxes,
brokerage fees and commissions, fees of Trustees who are not full-time employees
of the Adviser or any of its affiliates, expenses of Trustees' and shareholders'
meetings including the cost of printing and mailing proxies, expenses of Adviser
personnel attending Trustee meetings as required, expenses of insurance premiums
for fidelity and other coverage, expenses of repurchase and redemption of
shares, expenses of issue and sale of shares (to the extent not borne by its
national distributor under its agreement with the Trust), expenses of printing
and mailing stock certificates representing shares of the Trust, association
membership dues, charges of custodians, transfer agents, dividend disbursing
agents and financial agents, bookkeeping, auditing and legal expenses. The Trust
will also pay the fees and bear the expense of registering and maintaining the
registration of the Trust and its shares with the Securities and Exchange
Commission and registering or qualifying its shares under state or other
securities laws and the expense of preparing and mailing prospectuses and
reports to shareholders. Additionally, if authorized by the Trustees, the Trust
shall pay for extraordinary expenses and expenses of a non-
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recurring nature which may include, but not be limited to the reasonable and
proportionate cost of any reorganization or acquisition of assets and the cost
of legal proceedings to which the Trust is a party.
8. The Adviser shall adhere to all applicable policies and procedures
as adopted from time to time by the Trustees, including but not limited to the
following:
(a) Code of Ethics. The Adviser shall adopt a Code of Ethics
designed to prevent "access persons" (as defined therein in
accordance with Rule 17j-1 under the Investment Company Act
of 1940 (the "Investment Company Act")) from engaging in
fraudulent acts or transactions that are, or have the
potential of being viewed as, a conflict of interest, and
shall monitor for compliance with its Code of Ethics and
report any violations to the Trust's Compliance Officer.
(b) Policy with Respect to Brokerage Allocation. The Adviser
shall have full trading discretion in selecting brokers for
Series transactions on a day to day basis so long as each
selection is in conformance with the Trust's Policy with
Respect to Brokerage Allocation. Such discretion shall
include use of "soft dollars" for certain broker and
research services, also in conformance with the Trust's
Policy with Respect to Brokerage Allocation. The Adviser
may delegate the responsibilities under this section to a
Subadviser of a Series.
(c) Procedures for the Determination of Liquidity of Assets. It
shall be the responsibility of the Adviser to monitor the
Series' assets that are not liquid, making such
determinations as to liquidity of a particular asset as may
be necessary, in accordance with the Trust's Procedures for
the Determination of Liquidity of Assets. The Adviser may
delegate the responsibilities under this section to a
Subadviser of a Series.
(d) Policy with Respect to Proxy Voting. In the absence of
specific direction to the contrary and in a manner
consistent with the Trust's Policy with Respect to Proxy
Voting, the Adviser shall be responsible for voting proxies
with respect to portfolio holdings of the Trust. The
Adviser shall review all proxy solicitation materials and
be responsible for voting and handling all proxies in
relation to the assets under management by the Adviser in
accordance with such policies and procedures adopted or
approved by each Series'. Unless the Fund gives the Adviser
written instructions to the contrary, the Adviser will, in
compliance with the proxy voting procedures of the Series
then in effect or approved by the Series, vote or abstain
from voting, all proxies solicited by or with respect to
the issuers of securities in which the assets of the Series
may be invested. The Adviser shall cause the Custodian to
forward promptly to the Adviser (or designee) all proxies
upon receipt so as to afford the Adviser a reasonable
amount of time in which to determine how to vote such
proxies. The Adviser agrees to provide the Trust with
quarterly proxy voting reports in such form as the Trust
may request from time to time. The Adviser may delegate the
responsibilities under this section to a Subadviser of a
Series.
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(e) Procedures for the Valuation of Securities. It shall be the
responsibility of the Adviser to fully comply with the
Trust's Procedures for the Valuation of Securities. The
Adviser may delegate the responsibilities under this
section to a Subadviser of a Series.
9. For providing the services and assuming the expenses outlined
herein, the Trust agrees that the Adviser shall be compensated as follows:
(a) The Trust shall pay a monthly fee calculated at an annual
rate as specified in Schedule A. The amounts payable to the
Adviser with respect to the Series shall be based upon the
average of the values of the net assets of the Series as of
the close of business each day, computed in accordance with
the Trust's Declaration of Trust.
(b) Compensation shall accrue immediately upon the effective
date of this Agreement.
(c) If there is termination of this Agreement with respect to
any Series during a month, the Series' fee for that month
shall be proportionately computed upon the average of the
daily net asset values of such Series for such partial
period in such month.
(d) The Adviser agrees to reimburse the Trust for the amount,
if any, by which the total operating and management
expenses of the portfolio of any Series (including the
Adviser's compensation, pursuant to this paragraph, but
excluding taxes, interest, costs of portfolio acquisitions
and dispositions and extraordinary expenses), for any
"fiscal year" exceed the level of expenses which such
Series is permitted to bear under the most restrictive
expense limitation (which is not waived by the State)
imposed on open-end investment companies by any state in
which shares of such Series are then qualified. Such
reimbursement, if any, will be made by the Adviser to the
Trust within five days after the end of each month. For the
purpose of this subparagraph (d), the term "fiscal year"
shall include the portion of the then current fiscal year
which shall have elapsed at the date of termination of this
Agreement.
10. The services of the Adviser to the Trust are not to be deemed
exclusive, the Adviser being free to render services to others and to engage in
other activities. Without relieving the Adviser of its duties hereunder and
subject to the prior approval of the Trustees and subject further to compliance
with applicable provisions of the Investment Company Act, as amended, the
Adviser may appoint one or more agents to perform any of the functions and
services which are to be provided under the terms of this Agreement upon such
terms and conditions as may be mutually agreed upon among the Trust, the Adviser
and any such agent.
11. The Adviser shall not be liable to the Trust or to any shareholder
of the Trust for any error of judgment or mistake of law or for any loss
suffered by the Trust or by any shareholder of the Trust in connection with the
matters to which this Agreement relates, except a
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loss resulting from willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the Adviser in the performance of its duties hereunder.
12. It is understood that:
(a) Trustees, officers, employees, agents and shareholders of
the Trust are or may be "interested persons" of the Adviser
as directors, officers, stockholders or otherwise;
(b) Directors, officers, employees, agents and stockholders of
the Adviser are or may be "interested persons" of the Trust
as Trustees, officers, shareholders or otherwise; and
(c) The existence of any such dual interest shall not affect
the validity hereof or of any transactions hereunder.
13. This Agreement shall become effective with respect to the Existing
Series as of the date stated above, and with respect to any Additional Series,
on the date specified in any amendment to this Agreement reflecting the addition
of each Additional Series in accordance with paragraph 2 (the "Amendment Date").
Unless terminated as herein provided, this Agreement shall remain in full force
and effect until November 30, 2005 with respect to each Existing Series and
until November 30 of the first full calendar year following the Amendment Date
with respect to each Additional Series, and shall continue in full force and
effect for periods of one year thereafter with respect to each Series so long as
(a) such continuance with respect to any such Series is approved at least
annually by either the Trustees or by a "vote of the majority of the outstanding
voting securities" of such Series and (b) the terms and any renewal of this
Agreement with respect to any such Series have been approved by a vote of a
majority of the Trustees who are not parties to this Agreement or "interested
persons" of any such party cast in person at a meeting called for the purpose of
voting on such approval.
Any approval of this Agreement by a vote of the holders of a "majority
of the outstanding voting securities" of any Series shall be effective to
continue this Agreement with respect to such Series notwithstanding (a) that
this Agreement has not been approved by a "vote of a majority of the outstanding
voting securities" of any other Series of the Trust affected thereby and (b)
that this Agreement has not been approved by the holders of a "vote of a
majority of the outstanding voting securities" of the Trust, unless either such
additional approval shall be required by any other applicable law or otherwise.
14. The Trust may terminate this Agreement with respect to the Trust or
to any Series upon 60 days' written notice to the Adviser at any time, without
the payment of any penalty, by vote of the Trustees or, as to each Series, by a
"vote of the majority of the outstanding voting securities" of such Series. The
Adviser may terminate this Agreement upon 60 days' written notice to the Trust,
without the payment of any penalty. This Agreement shall immediately terminate
in the event of its "assignment".
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15. The terms "majority of the outstanding voting securities",
"interested persons" and "assignment", when used herein, shall have the
respective meanings in the Investment Company Act.
16. In the event of termination of this Agreement, or at the request of
the Adviser, the Trust will eliminate all reference to "Phoenix" from its name,
and will not thereafter transact business in a name using the word "Phoenix" in
any form or combination whatsoever, or otherwise use the word "Phoenix" as a
part of its name. The Trust will thereafter in all prospectuses, advertising
materials, letterheads, and other material designed to be read by investors or
prospective investors delete from the name the word "Phoenix" or any
approximation thereof. If the Adviser chooses to withdraw the Trust's right to
use the word "Phoenix," it agrees to submit the question of continuing this
Agreement to a vote of the Trust's shareholders at the time of such withdrawal.
17. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the trust property of
the Trust, as provided in the Declaration of Trust. The execution and delivery
of this Agreement have been authorized by the Trustees and shareholders of the
Trust and signed by the President of the Trust, acting as such, and neither such
authorization by such Trustees and shareholders nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
be binding upon or impose any liability on any of them personally, but shall
bind only the trust property of the Trust as provided in its Declaration of
Trust.
18. This Agreement shall be construed and the rights and obligations of
the parties hereunder enforced in accordance with the laws of the State of
Delaware.
19. Subject to the duty of the Adviser and the Trust 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 Series and any Additional Series that may be
named, and the actions of the Adviser and the Trust in respect thereof.
20. The Adviser will not advise or act on behalf of the Series in
regard to class action filings, with respect to any securities held in the
Series portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first written
above.
PHOENIX-XXXXXXXX FUNDS
By:
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Name: Xxxxxxxx Xxxx
Title: President
PHOENIX INVESTMENT COUNSEL, INC.
By:
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Name: Xxxx X. Xxxxx
Title: Vice President and Clerk
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SCHEDULE A
SERIES ANNUAL INVESTMENT ADVISORY FEE
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Phoenix-Xxxxxxxx Balanced Return Fund 0.80% for first $50 million
0.70% on next $450 million
0.60% over $500 million
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