EXHIBIT 23(d)2(1)
SUBADVISORY AGREEMENT
THE PHOENIX EDGE SERIES FUND
PHOENIX MID-CAP GROWTH SERIES
PHOENIX STRATEGIC THEME SERIES
SUBADVISORY AGREEMENT
THE PHOENIX EDGE SERIES FUND
PHOENIX MID-CAP GROWTH SERIES
PHOENIX STRATEGIC THEME SERIES
Xxxxxxx Xxxxxxxx Management LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
AGREEMENT made as of the 12th day of August 2005 between Phoenix
Variable Advisors, Inc. (the "Advisor"), a corporation organized under the laws
the State of Delaware, and Xxxxxxx Xxxxxxxx Management, LLC (the "Subadvisor"),
a limited liability company organized under the laws of the State of New York.
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 Mid-Cap Growth Series (formerly, Phoenix-Seneca
Mid-Cap Growth Series) and Phoenix Strategic Theme Series (formerly,
Phoenix-Seneca Strategic Theme Series) (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 Trustees of the
Fund (the "Trustees"), to retain Subadvisor to furnish portfolio management
services for the Designated Series; and
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 discretionary 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 discretionary subadvisor of the Designated
Series and agrees to use its best professional judgment to make
investment decisions 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 D attached hereto and made a
part hereof. 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 conflict in any material manner with the Subadvisor's performance
of its duties and obligations pursuant to this Agreement.
3. Services of Subadvisor. Subject to the general oversight of the Advisor
and the Trustees, the Subadvisor shall manage all of the securities and
other similar assets of the Designated Series entrusted to it under
this Agreement, including the purchase, retention, and disposition of
such securities and other property, and shall carry out all of its
duties and obligations under this Agreement, according to the following
terms and conditions:
(a) At all times in performing its duties and obligations
under this Agreement, the Subadvisor shall act in conformity with the
following requirements: (i) the investment objectives, policies and
restrictions of the Fund as they apply to the Designated Series and as
set forth in the Fund's then current prospectus and statement of
additional information, as amended or supplemented from time to time
(collectively, the "Prospectus"); (ii) the 1940 Act, the Investment
Advisers Act of 1940, as amended (the "Advisers Act") and the rules and
regulations thereunder; (iii) all other applicable federal and state
laws, as each may be amended from time to time; and (iv) and any
resolutions as may be duly adopted by the Trustees from time to time
and any instructions and procedures of the Advisor, and, in either
case, furnished to the Subadvisor (collectively, these requirements are
referred to herein as the "Investment Requirements").
(b) The Subadvisor shall furnish a continuous investment
program and shall, in its discretion, determine what portfolio
investments will be purchased, retained, or sold by the Designated
Series in conformity with the Prospectus and other Investment
Requirements.
(c) The Subadvisor shall effect all transactions and take
all actions to implement the investment objectives and policies of the
Designated Series in accordance with this Agreement.
(d) The Subadvisor shall have full authority at all times
with respect to the portfolio management of the Assets, including, but
not limited to, the authority: (i) to give written or oral instructions
to various broker/dealers, banks or other agents and to bind and
obligate the Fund to and for the carrying out of contracts,
arrangements, or transactions which shall be entered into by the
Subadvisor on the Fund's behalf with or through such broker/dealers,
banks or other agents; (ii) to direct the purchase and sale of any
securities; and (iii) to maintain such uninvested cash balances in the
Designated Series as it shall deem reasonable and appropriate without
incurring any liability for the payment of interest thereon.
(e) The Subadvisor shall not, without the Advisor's prior
written approval, effect any transaction or take any action that would
cause the Designated Series at the time of the transaction or action to
be out of compliance with any of the Investment Requirements. The
Subadvisor shall promptly inform the Fund and the Advisor of
developments materially affecting (or reasonably expected to affect)
the Designated Series, and will, on its own initiative, furnish the
Fund and the Advisor from time to time with whatever information the
Subadvisor believes is appropriate for this purpose.
(f) The Subadvisor shall send or make available appropriate
representatives to/for regular or special meetings of the Fund as may
be reasonably requested from time to time by the Advisor.
(g) The Subadvisor shall provide appropriate
representatives to attend meetings requested by the Advisor at such
time(s) and location(s) as are reasonably requested by the Advisor.
(h) The Subadvisor shall place all orders for the purchase
or sale of securities or other investments for the Designated Series
with brokers or dealers selected by the Subadvisor, as more fully
specified below in Section 6 of this Agreement.
4. Transaction Procedures. All transactions for the purchase or sale of
securities or other investments for the Designated Series will be
consummated by payment to, or delivery by, the Custodian(s) from time
to time designated by the Fund (the "Custodian"), or such depositories
or agents as may be designated by the Custodian pursuant to its
agreement with the Fund (the "Custodian Agreement"), of all cash and/or
securities and/or other property due to or from the Designated Series.
The Subadvisor shall not have possession or custody of such cash and/or
securities or any responsibility or liability with respect to such
custody, except as expressly stated herein. The Subadvisor shall advise
the Custodian and confirm in writing or by confirmed electronic
transmission to the Fund all investment orders for the Designated
Series placed by it with brokers and dealers at the time and in the
manner set forth in Schedule A hereto (as amended from time to time).
The Fund shall issue to the Custodian such instructions as may be
appropriate in connection with the settlement of any transaction
initiated by the Subadvisor. The Fund shall be responsible for all
custodial arrangements and the payment of all custodial charges and
fees, and, upon giving proper instructions to the Custodian, the
Subadvisor shall have no responsibility or liability with respect to
custodial arrangements or the acts, omissions or other conduct of the
Custodian.
5. Recordkeeping and Reporting. The Subadvisor shall maintain the records
and information required by Rule 31a-1 under the 1940 Act described in
Schedule B attached hereto, and such other records relating to the
services the Subadvisor provides under this Agreement as may reasonably
be required in the future by applicable SEC and other applicable rules,
and shall retain such information for such times and in such manner as
required by applicable rules, including but not limited to Rule 31a-2
under the 1940 Act. The records maintained by the Subadvisor hereunder
shall be the property of the Fund and shall be surrendered promptly
upon request; 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 shall be entitled to make and maintain
copies of any records so retained by the Subadvisor.
6. Allocation of Brokerage. The Subadvisor shall have authority and
discretion to select brokers and dealers to execute transactions
initiated by the Subadvisor on behalf of the Designated Series with
regard to the Assets, and to select the markets on or in which the
transactions will be executed, subject to the following limitations:
(a) The Subadvisor shall at all times seek
"best-execution", as defined in Section 28(e)(1) of the Securities
Exchange Act of 1934, as amended, (the "1934 Act").
(b) The Subadvisor shall at all times place orders for the
sale and purchase of securities in accordance with the brokerage policy
of the Designated Series as set forth in the Prospectus and as the
Advisor or the Trustees may direct from time to time.
(c) In placing orders for the sale and purchase of
Designated Series securities for the Fund, the Subadvisor's primary
responsibility shall be to seek the best execution of orders at the
most favorable prices. However, this responsibility shall not obligate
the Subadvisor to solicit competitive bids for each transaction or to
seek the lowest available commission cost to the Fund, so long as the
Subadvisor reasonably believes that the broker or dealer selected by it
can be expected to provide "best-execution" on the particular
transaction and determines in good faith that the commission cost is
reasonable in relation to the value of the "brokerage and research
services," as defined in Section 28(e)(3) of the 1934 Act, provided by
such broker or dealer to the Subadvisor, viewed in terms of either that
particular transaction or of the Subadvisor's overall responsibilities
with respect to its clients, including the Fund, as to which the
Subadvisor exercises investment discretion, notwithstanding that the
Fund may not be the direct or exclusive beneficiary of any such
services or that another broker may be willing to charge the Fund a
lower commission on the particular transaction.
7. Prohibited Conduct. In providing the services described in this
Agreement, the Subadvisor will not consult with any other investment
advisory firm that the Subadvisor knows provides investment advisory
services to any of the Funds series regarding transactions for the Fund
in securities or other assets. In addition, the Subadvisor shall not,
without the prior written consent of the Fund and the Advisor, delegate
any obligations assumed pursuant to this Agreement to any affiliated or
unaffiliated third party.
8. 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;
(b) Personnel and services necessary to perform the
functions required to manage the investment and reinvestment of the
Assets (including those required for research, analysis, pricing,
reporting, statistics, and investment), and to fulfill the other duties
and obligations of the Subadvisor hereunder;
9. 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 C. 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.
10. 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).
11. Indemnification.
(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 and Statement
of Additional Information, as amended or supplemented from time to time
or promotional materials pertaining or 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 in the
Fund's registration statement or other than upon verbal information
confirmed by the Subadvisor in writing expressly for use in the Fund's
registration statement.
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
or Statement of Additional Information, as amended or supplemented from
time to time 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 or any affiliated person of 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; or (iv) to the extent of, and as a
result of, the failure of the Subadvisor to execute, or cause to be
executed, portfolio transactions according to the standards and
requirements of the 1934 Act, the 1940 Act and the Advisers Act.
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.
12. Insurance. The Subadvisor shall, during the term of this Agreement, at
its own expense, maintain adequate liability and errors and omissions
insurance coverage to the reasonable satisfaction of the Advisor.
13. 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 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.
14. Confidentiality. Subject to the duty of the Advisor or 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 and other services 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 Subadvisor shall maintain and enforce adequate security
procedures with respect to all materials, records, documents and data
relating to any of its responsibilities pursuant to this Agreement
including all means for the effecting of investment transactions.
15. 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. 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. The
Subadvisor will be liable to the Fund and the Advisor for all direct
and indirect costs resulting from a change of control of the
Subadvisor, including without limitation all costs associated with any
proxy solicitations, Board meetings, revisions to the Prospectus or
marketing materials, and the hiring of another subadvisor on behalf of
the Designated Series. The understandings and obligations set forth in
this Section shall survive the termination of this Agreement and shall
be binding upon the Subadvisor and its successors.
16. Representations, Warranties and Agreements of the Subadvisor. The
Subadvisor represents, warrants and agrees that:
(a) It is registered as an "investment advisor" under the
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
posses 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 of 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 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 if such a violation has
occurred, that appropriate action was taken in response to such
violation. The Subadvisor shall permit the Fund and Advisor to examine
the reports required to be made by the Subadvisor under Rule
17j-l(c)(1) or as required by law.
(h) It will use all necessary efforts to manage the
Designated Series so that it will satisfy 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 be responsible for the preparation and filing
of Schedule 13G and Form 13F on behalf of the Designated Series in
accordance with the requirements thereunder.
(l) 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.
(m) It will maintain, keep current and preserve on behalf
of the Fund, in the manner required or permitted by the Advisers Act
and the Rules thereunder, the records identified in Schedule B (as
Schedule B may be amended from time to time). The Subadvisor agrees
that such records are the property of the Fund, and will be surrendered
to the Fund or to the Adviser as agent of the Fund promptly upon
request of either.
(n) The Subadvisor hereby warrants and represents that it
will provide the requisite certifications requested by the chief
executive office 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 E attached hereto and made a
part hereof.
(o) 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 in respect of the Subadvisor's policies and procedures,
compliance by the Subadvisor with federal securities laws and related
matters and the Fund's compliance personnel may reasonably request. The
Subadvisor agrees to promptly notify the Advisor of any material
compliance violations which affect the Designated Series.
17. Representations, Warranties and Agreements of the Advisor. The Advisor
represents, warrants and agrees that:
(a) It is registered as an "investment advisor" 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
posses 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, and (iii) such 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.
18. 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 their 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 posses its assets and carry on its business as it is now being
conducted.
(c) The Fund has taken all necessary action, and have
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.
19. 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) compliance with
procedures adopted from time to time by the Trustees relative to
securities eligible for resale pursuant to Rule 144A under the 1933
Act; (iii) diversification of Designated Series assets in accordance
with the then governing laws and prevailing Prospectus pertaining to
the Designated Series; (iv) compliance with governing Fund policies and
restrictions relating to the fair valuation of securities for which
market quotations are not readily available or considered "illiquid"
for the purposes of complying with the Designated Series limitation on
acquisition of illiquid securities; (v) cross transactions conducted
pursuant to Rule 17a-7 under the 1940 Act; (vi) allocations of
brokerage transactions along with descriptions of the bases for those
allocations and the receipt and treatment of brokerage and research
services received, as may be requested to ensure compliance with
Section 28(e) of the 1934 Act; (vii) any and all other reports
reasonably requested in accordance with or described in this Agreement;
and, (viii) the implementation of the Designated Series investment
program, including, without limitation, analyses of Designated Series
performance;
(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 portfolio management of 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; and (iii) foreign custody arrangements as governed by Rule 17f-7
under the 1940 Act; (iv) compliance with the Subadvisor's code of
ethics pursuant to Rule 17j-1; and (v) 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 accountants,
PricewaterhouseCoopers LLP, or any successor accountant for the Fund,
any information that they may request in connection with the Fund.
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.
20. Proxies. The Subadvisor shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in relation to
the Assets. Unless the Advisor or the Fund gives the Subadvisor written
instructions to the contrary, the Subadvisor will, in compliance with
the proxy voting procedures of the Designated Series then in effect,
and provided in writing to the Subadvisor, vote or abstain from voting,
all proxies solicited by or with respect to the issuers of securities
in which assets of the Designated Series may be invested. The Advisor
shall cause the Custodian to forward promptly to the Subadvisor all
proxies upon receipt, so as to afford the Subadvisor a reasonable
amount of time in which to determine how to vote such proxies. The
Subadvisor agrees to provide the Advisor in a timely manner with
quarterly proxy voting reports containing a record of votes cast
containing all of the voting information required by Form N-PX in an
electronic format to enable the Designated Series to file Form N-PX as
required by Rule 30b1-4 under the Act.
21. Valuation of Assets and Related Recordkeeping. The Subadvisor shall
assist the recordkeeping agent for the Fund in determining or
confirming the value of any securities or other assets in the
Designated Series for which the recordkeeping agent seeks assistance
from or identifies for review by the Advisor. The parties agree that,
consistent with applicable law, the Advisor will not bear
responsibility for the determination of value of any such securities or
other assets.
22. 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, D or E, is
subject to the approval of the Trustees and the Shareholders of the
Fund as and to the extent required by the 1940 Act.
23. 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, 2006, 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.
24. Notices. Except as otherwise provided in this Agreement, all notices or
other communications required of 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: XXXXXXX XXXXXXXX MANAGEMENT LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Member Operations Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx
25. Termination. This Agreement shall terminate immediately in the event of
its assignment, as specified above in Section 14 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.
26. Use of Subadvisor's Name. Subadvisor hereby grants to the Fund and
Advisor a non-exclusive, royalty-free, worldwide license to use the
subadvisor's name and logo in any and all promotional materials,
prospectuses and registration statements pertaining to the Designated
Series during the term of this Agreement, subject, however, to
obtaining the Subadvisor's prior consent to each use of its name or
logo prior to its first use in any document or promotional material.
27. 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.
28. 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.
29. 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.
30. 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)
--------------------------
THE PHOENIX EDGE SERIES FUND
By:/s/ Xxxx X. X'Xxxxxxx
---------------------------------
Name: Xxxx X. X'Xxxxxxx
Title: Senior Vice President
PHOENIX VARIABLE ADVISORS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
ACCEPTED:
XXXXXXX XXXXXXXX MANAGEMENT LLC
By: /s/ Xxx Xxxxxxxxx
-----------------------------
Name: Xxx Xxxxxxxxx
Title: Managing Member
SCHEDULES: A. Operational Procedures
B. Record Keeping Requirements
C. Fee Schedule
D. Subadvisor Functions
E. Form of Sub-Certification
SCHEDULE A
----------
OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow of
information to be supplied by the Subadvisor to State Street Bank and Trust
Company for the Phoenix Mid-Cap Growth Series to XX Xxxxxx Xxxxx Bank and for
the Phoenix Strategic Theme Series (the "Custodians") and PFPC, Inc. (the
"Sub-Accounting Agent") for the Fund. It is anticipated that State Street Bank
and Trust Company will become the Custodian for Phoenix Strategic Theme Series
on or about September 9, 2005.
The Subadvisor must furnish the Custodians and Sub-Accounting Agent with daily
information as to executed trades, or, if no trades are executed, with a report
to that effect, no later than 5:00 p.m. (Eastern time) each day the Fund is open
for business. The necessary information may be sent electronically or via
facsimile machine to the Custodians and the Sub-Accounting Agent. Information
provided to the Custodians and the Sub-Accounting Agent shall include the
following:
1. Purchase or sale;
2. Security name;
3. CUSIP number (if applicable);
4. Number of shares and sales price per share;
5. Executing broker;
6. Settlement agent.;
7. Trade date;
8. Settlement date;
9. Aggregate commission or if a net trade;
10. Interest purchased or sold from interest bearing security;
11. Other fees;
12. Net proceeds of the transaction;
13. Exchange where trade was executed;
14. Currency for foreign trades;
15. Ticker symbol for domestic trades; and
16. Identified tax lot (if applicable).
When opening accounts with brokers for, and in the name of, the Fund, the
account must be a cash account. No margin accounts are to be maintained in the
name of the Fund. Delivery instructions are as specified by the Custodians. The
Custodians and Sub-Accounting Agent will supply the Subadvisor daily with a cash
availability report via access to the Custodians website, or by email or by
facsimile and the Sub-Accounting Agent will provide a five day cash projection.
This will normally be done electronically or via facsimile machine so that the
Subadvisor will know the amount available for investment purposes.
SCHEDULE B
----------
RECORDS TO BE MAINTAINED BY THE SUBADVISOR
1. (Rule 31a-1(b)(5)) A record of each brokerage order, and all other
portfolio purchases and sales, given by the Subadvisor on behalf of the
Designated Series for, or in connection with, the purchase or sale of
securities, whether executed or unexecuted. Such records shall include:
A. The name of the broker;
B. The terms and conditions of the order and of any modifications or
cancellation thereof;
C. The time of entry or cancellation;
D. The price at which executed;
E. The time of receipt of a report of execution; and
F. The name of the person who placed the order on behalf of the Fund.
2. (Rule 31a-1(b)(9)) A record for each fiscal quarter, completed within
ten (10) days after the end of the quarter, showing specifically the
basis or bases upon which the allocation of orders for the purchase and
sale of Designated Series securities to named brokers or dealers was
effected, and the division of brokerage commissions or other
compensation on such purchase and sale orders. Such record:
A. Shall include the consideration given to:
(i) The sale of shares of the Fund by brokers or dealers.
(ii) The supplying of services or benefits by brokers or dealers
to:
(a) The Fund,
(b) The Advisor,
(c) The Subadvisor, and
(d) Any person other than the foregoing.
(iii) Any other consideration other than the technical
qualifications of the brokers and dealers as such.
B. Shall show the nature of the services or benefits made available.
C. Shall describe in detail the application of any general or
specific formula or other determinant used in arriving at such
allocation of purchase and sale orders and such division of
brokerage commissions or other compensation.
D. Shall show the name of the person responsible for making the
determination of such allocation and such division of brokerage
commissions or other compensation.
3. (Rule 31a-(b)(10)) A records in the form of an appropriate memorandum
identifying the person or persons, committees or groups authorizing the
purchase or sale of portfolio securities. Where a committee or group
makes an authorization, a record shall be kept of the names of its
members who participate in the authorization. There shall be retained
as
part of this record: any memorandum, recommendation or instruction
supporting or authorizing the purchase or sale of portfolio securities
and such other information as is appropriate to support the
authorization.*
4. (Rule 31a-1(f)) Such accounts, books and other documents as are
required to be maintained by registered investment advisers by rule
adopted under Section 204 of the Investment Advisers Act of 1940, to
the extent such records are necessary or appropriate to record the
Subadvisor's transactions for the Designated Series.
-----------------------------
* Such information might include: current financial information, annual and
quarterly reports, press releases, reports by analysts and from brokerage firms
(including their recommendation; i.e., buy, sell hold) or any internal reports
or subadvisor review.
SCHEDULE C
----------
SUBADVISORY FEE
For services provided to the Fund, the Advisor will pay to the Subadvisor, on or
before the 10th day of each month, a fee, payable in arrears, at the annual rate
stated below. The fees shall be prorated for any month during which this
Agreement is in effect for only a portion of the month. In computing the fee to
be paid to the Subadvisor, the net asset value of the Fund and each Designated
Series shall be valued as set forth in the then current registration statement
of the Fund.
Phoenix Mid-Cap Growth Series: 0.40% on all Series assets
Phoenix Strategic Theme Series: 0.375% on the first $250 million of Series assets
0.35% on the next $250 million of Series assets
0.325% on all Series assets in excess of $500 million
The fee to be paid to the Subadvisor is to be calculated based on the average
daily net assets of the Phoenix Mid-Cap Growth Series and the Phoenix Strategic
Theme Series, individually, for the respective month, or shorter period during
which the Subadvisory Agreement is in effect.
SCHEDULE D
----------
SUBADVISOR FUNCTIONS
With respect to managing the investment and reinvestment of the
Designated Series' assets, the Subadvisor shall provide, at its own expense:
(a) An investment program for the Designated Series consistent with its
investment objectives based upon the development, review and adjustment
of buy/sell strategies approved from time to time by the Board of
Trustees and Advisor, all as set forth in the Objectives and Policies;
(b) Implementation of the investment program for the Designated Series
based upon the foregoing criteria;
(c) Quarterly reports, in form and substance acceptable to the Advisor,
with respect to: (i) compliance with the Code of Ethics; (ii)
compliance with procedures adopted from time to time by the Trustees of
the Fund relative to securities eligible for resale under Rule 144A
under the Securities Act of 1933, as amended; (iii) diversification of
Designated Series assets in accordance with the then prevailing
Objectives and Policies and governing laws; (iv) compliance with
governing restrictions relating to the fair valuation of securities for
which market quotations are not readily available or considered
"illiquid" for the purposes of complying with the Designated Series'
limitation on acquisition of illiquid securities included in the
Objectives and Policies; (v) any and all other reports reasonably
requested in accordance with or described in this Agreement; and (vi)
the implementation of the Designated Series' investment program,
including, without limitation, analysis of Designated Series
performance;
(d) 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 Trustees;
(e) Attendance by appropriate representatives of the Subadvisor at meetings
requested by the Advisor or Trustees at such time(s) and location(s) as
reasonably requested by the Advisor or Trustees; and
(f) Notice to the Trustees and the Advisor of the occurrence of any event
which would disqualify the Subadvisor from serving as an investment
advisor of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise.
SCHEDULE E
----------
FORM OF SUB-CERTIFICATION
To:
Re: Form N-CSR Certification for the [Name of Series].
From: [Name of Subadvisor]
Representations in support of Investment Company Act Rule 30b1-5
certifications of Form N-CSR.
[Name of Series].
In connection with your certification responsibility under Rule 30b1-5
and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002, I have
reviewed the following information presented for the period ended [Date
of Reporting Period] (the "Reports") which forms part of the N-CSR for
the Series.
Schedule of Investments (the "Reports")
Our organization has designed, implemented and maintained internal controls and
procedures, designed for the purpose of ensuring the accuracy and completeness
of relevant portfolio trade data transmitted to those responsible for the
preparation of the Schedule of Investments. As of the date of this certification
there have been no material modifications to these internal controls and
procedures.
In addition, our organization has:
a. Designed such internal controls and procedures to ensure that material
information is made known to the appropriate groups responsible for
servicing the above-mentioned mutual funds.
b. Evaluated the effectiveness of our internal controls and procedures, as
of a date within 90 days prior to the date of this certification and we
have concluded that such controls and procedures are effective.
c. In addition, to the best of my knowledge 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 sub-advisor to
the Series.
I have read the draft of the Reports which I understand to be current as of
[Date of Reporting Period] and based on my knowledge, such drafts of the Reports
do not, with respect to the Series, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the information
contained therein, in light of the circumstances under which such information is
presented, not misleading with respect to the period covered by such draft
Reports.
I have disclosed, based on my most recent evaluation, to the Series' Chief
Accounting Officer:
a. All significant changes, deficiencies and material weakness, if any, in
the design or operation of the Subadvisor's internal controls and
procedures which could adversely affect the Advisor's ability to
record, process, summarize and report financial data in a timely
fashion;
b. Any fraud, whether or not material, that involves the Subadvisor's
management or other employees who have significant role in the
Subadvisor's internal controls and procedures for financial reporting.
I certify that to the best of my knowledge:
a. The Subadvisor's portfolio manager have complied with the restrictions
and reporting requirements of the Subadvisor's Code of Ethics (the
"Code").
b. The Subadvisor has complied with the Prospectus and Statement of
Additional Information of the Series and the Policies and Procedures of
the Series as adopted by the Series' Board of Trustees to the extent
applicable as specified in the Acknowledgement dated August 10, 2005.
c. I have no knowledge of any compliance violations with respect to the
Series 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 33
Act and 40 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 Series as outlined above.
This certification relates solely to the Series 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 above
Series. The sub-Subadvisor's records are based on its own portfolio management
system, a record-keeping system that is not intended to service as the Funds'
official accounting system. The Subadvisor is not responsible for the
preparation of the Reports.
------------------------------- --------------------------
[Name of Authorized Signature] Date
