Exhibit d.1
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT effective as of the 20th day of November, 2002 (the
"Contract Date") is by and between Phoenix-Oakhurst Strategic Allocation Fund, a
Delaware business trust (the "Trust") and Phoenix Investment Counsel, Inc., a
Connecticut corporation (the "Adviser").
The Trust and Adviser are parties to a certain Investment Adviser
Contract effective as of January 1, 1994, as amended (the collectively
"Agreement"). The parties mutually desire to amend and restate the Agreement as
follows:
WITNESSETH THAT:
1. The Trust has appointed the Adviser to act as investment adviser to
the Trust on behalf of the 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 has accepted such
appointment and has agreed to render the services described in this Agreement
for the compensation herein provided.
2. In the event that the Trustees desire to retain the Adviser to
render investment advisory services hereunder with respect to one or more
additional series (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
Existing Series and 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 each
Series, subject at all times to the supervision of the Trustees.
4. With respect to managing the investment and reinvestment 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-recurring nature
which may include, but not be limited to the reasonable and proportionate cost
of any reorganization or acquisition of assets and the cost of legal proceedings
to which the Trust is a party.
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8. 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.
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:
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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 respective Series shall be based upon the average
of the values of the net assets of such 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 for 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 farther 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 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
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c) The existence of any such dual interest shall not affect the
validity hereof or of any transactions hereunder.
13. This Amended and Restated Agreement shall become effective with
respect to the Existing Series as of November 20, 2002, 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, 2003 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; provided, however, that the
continuance of this Agreement with respect to each Additional Series is subject
to its approval by a "vote of a majority of the outstanding voting securities"
of any such Additional Series on or before the next anniversary of the Contract
Date following the date on which such Additional Series became a Series
hereunder.
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".
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.
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17. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the trust property of
the Trust, as provided in the Declaration of Trust. The execution and delivery
of this Agreement have been authorized by the Trustees and shareholders of the
Trust and signed by the President of the Trust, acting as such, and neither such
authorization by such Trustees and shareholders nor such execution and delivery
by such officer shall be deemed to have been made by any of them individually or
be binding upon or impose any liability on any of them personally, but shall
bind only the trust property of the Trust as provided in its Declaration of
Trust. The Certificate of Trust, as amended, is or shall be on file with the
Secretary of State of Delaware.
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
Connecticut.
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-OAKHURST STRATEGIC ALLOCATION FUND
By: /s/ Xxxxxx X. XxXxxxxxxx
-----------------------------------------
Name: Xxxxxx X. XxXxxxxxxx
Title: President
PHOENIX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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SCHEDULE A
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Series Investment advisory Fee
------ -------------------------
$1st billion $1+ Billion $2+ Billion
through $2 Billion
Phoenix-Oakhurst Strategic Allocation Fund 0.65% 0.60% 0.55%
The parties to this Agreement hereby acknowledge the following fund name changes: Phoenix-Oakhurst
Strategic Allocation Fund f/k/a Phoenix-Oakhurst Strategic Allocation Fund, Inc.; f/k/a Phoenix
Strategic Allocation Fund, Inc.; and f/k/a Phoenix Total Return Fund, Inc.
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