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 Income & Growth Fund, a
Delaware business trust (the "Trust") and Phoenix Investment Counsel, Inc., a
Connecticut corporation (the "Adviser").
By the terms of that certain Substitution Agreement dated May 27, 1998,
the Trust and Adviser are parties to a certain Management Agreement effective as
of May 14, 1993, as amended January 1, 1994, as amended (collectively the
"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 to 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) Advise 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 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,
2
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.
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,
3
vote or abstain from voting, all proxies solicited by or
with respect to the issuer 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 series 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 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 an 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.
4
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 an shareholder of the Trust in connection with
the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bath 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 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 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.
5
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 payment. 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.
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.
6
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 INCOME & GROWTH 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
7
SCHEDULE A
Series Investment Advisory Fee
------ -----------------------
$1st billion $1+Billion through $2+ Billion
$2 Billion
Phoenix-Oakhurst Income & Growth Fund 0.70% 0.65% 0.60%
The parties to this Agreement hereby acknowledge the following fund name change:
Phoenix-Oakhurst Income & Growth Fund f/k/a Phoenix Income and Growth Fund.
