Exhibit 23(d)2(2)
Subadvisory Agreement between Aberdeen Asset Management Inc.
and Phoenix Variable Advisors, Inc.
covering Phoenix-Aberdeen International Series
SUBADVISORY AGREEMENT
THE PHOENIX EDGE SERIES FUND
PHOENIX-ABERDEEN INTERNATIONAL SERIES
Aberdeen Asset Management Inc.
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AGREEMENT made as of the 1st day of August, 2007 between Phoenix
Variable Advisors, Inc. (the "Advisor"), a corporation organized under the laws
of the State of Delaware, and Aberdeen Asset Management Inc. (the "Subadvisor"),
a corporation organized under the laws of the State of Delaware.
WHEREAS, The Phoenix Edge Series Fund (the "Fund") is a diversified
open-end investment company of the series type registered under the Investment
Company Act of 1940, as amended, (the "1940 Act"); and
WHEREAS, the shares of the Fund may be offered in one or more separate
series, including the Phoenix-Aberdeen International Series (the "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 Series; and
WHEREAS, pursuant to the Advisory Agreement, the Advisor renders
certain investment advisory services to the Fund on behalf of the Series,
including providing general oversight of the Series, and evaluating,
recommending and monitoring one or more registered investment advisors to serve
as subadvisor to the 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 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 subadvisor with regard to the
assets of the Series (the "Assets"), subject to the terms and
conditions set forth in this Agreement.
2. Acceptance of Employment; Standard of Performance. The Subadvisor
accepts such appointment to serve as subadvisor of the Assets and
agrees to use its best professional judgment to make investment
decisions and provide related services for the Assets of the 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.
1
3. Services of Subadvisor. Subject to the general oversight of the Advisor
and the Trustees, the Subadvisor shall manage all of the Assets of the
Series entrusted to it under this Agreement, including the purchase,
retention, and disposition of assets, 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 Assets of the 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 Fund's Agreement and
Declaration of Trust, dated February 18, 1986, establishing the Fund,
as may be amended from time to time, ("Declaration of Trust"); (iii)
the 1940 Act, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), the Securities Act of 1933, as amended, (the "1933
Act") and the Securities Exchange Act of 1934, as amended, (the "1934
Act") and the rules and regulations thereunder; (iv) the Internal
Revenue Code of 1986, as amended, (the "Code") and the rules and
regulations thereunder, including but not limited to the requirements
for adequate diversification under Section 817(h) of the Code, for
treatment by the Series as a regulated investment company under
sub-chapter M of the Code, and for avoiding payment of any excise tax
under Section 4982 of the Code; (v) all other applicable federal and
state laws, as each may be amended from time to time; and (vi) 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 determine what portfolio investments will be
purchased, retained, or sold by the Series with regards to the Assets
of the 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
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 Assets of the
Series as it shall deem reasonable and appropriate without incurring
any liability for the payment of interest thereon.
2
(e) The Subadvisor shall not, without the Advisor's prior
written approval, effect any transaction or take any action that would
cause the Assets of the 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 Assets of the 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 Assets of the 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 Assets of the 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 Assets of the
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 described herein. The Subadvisor shall
advise the Custodian and confirm in writing or by confirmed electronic
transmission to the Fund all investment orders for the Assets of the
Series placed by it with brokers and dealers at the time and in the
manner set forth in the Custodian Agreement and 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 other than arrangements, acts, omissions or
other conduct arising in reliance on instructions of the Subadvisor.
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, with respect to the Assets of the Series.
In addition, the Subadvisor shall maintain such other records relating
to the services the Subadvisor provides under this Agreement as may be
3
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 request.
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 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 ▇▇▇▇ ▇▇▇.
(b) The Subadvisor shall at all times place orders for the
sale and purchase of securities in accordance with the brokerage policy
of the 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 securities
for the Assets of the Series, 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 Series, 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 Series, as to which the
Subadvisor exercises investment discretion, notwithstanding that the
Series may not be the direct or exclusive beneficiary of any such
services or that another broker may be willing to charge the Series a
lower commission on the particular transaction.
(d) The Subadvisor shall not execute any securities
transactions for the Assets of the Series with a broker/dealer that is
an "affiliated person" (as defined in the Act) of the Fund, the
Subadvisor or the Advisor without the prior written approval of the
Fund. The Fund will provide the Subadvisor with a list of
broker/dealers that are "affiliated persons" of the Fund or Advisor.
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 unaffiliated
third party.
4
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; and
(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 Assets of the 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
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
5
Information, as amended or supplemented from time to time or
promotional materials pertaining or relating to the 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 Series or any amendment thereof or any
supplement thereto or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statement therein not misleading, if such a statement or omission was
made in reliance upon written information furnished by the Subadvisor
to the Advisor, the Fund or any affiliated person of the Advisor or the
Fund expressly for use in the Fund's registration statement, or upon
verbal information confirmed by the Subadvisor in writing expressly for
use in the Fund's registration statement; 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 with respect to the Assets of the
Series 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.
6
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 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
Series. 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 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 Series. The parties acknowledge and agree that all
nonpublic personal information with regard to shareholders in the
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
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:
7
(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 15 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 the Code of Ethics, as
the case may be, or if such a violation has occurred, that appropriate
action was taken in response to such violation. The Subadvisor shall
permit the Fund and Advisor to examine the reports required to be made
by the Subadvisor under Rule 17j-l(c)(1) and all other records relevant
to the Subadvisor's code of ethics as may be reasonably requested by
the Advisor or Trustees from time to time.
(h) It will use all necessary efforts to manage the Assets of
the 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.
8
(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 Assets of the 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 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
officer and chief financial officer of the Fund necessary for those
named officers to fulfill their reporting and certification obligations
on Form N-CSR as required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 in
substantially 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 Series.
9
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 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.
10
(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 the Assets of the Series assets in
accordance with the then governing laws and prevailing Prospectus
pertaining to the 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 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 Assets of the Series investment program,
including, without limitation, analyses of Series performance
pertaining to the Assets of the Series;
(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 Series performance pertaining to the Assets
of the Series; (ii) disclosure related to the portfolio management of
the Assets of the 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.
11
In addition, the Subadvisor shall immediately notify and forward to
both the Advisor and legal counsel for the 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 and Class Actions. 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 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 the Assets of the Series may be invested. The
Advisor shall cause the Custodian to forward promptly to the Subadvisor
all such 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.
The Subadvisor will not advise or act on behalf of the Series to file
Form N-PX as required by Rule 30b1-4 under the Act. The Subadvisor will
not advise or act on behalf of the Series in regards to class action
filings, with respect to any securities held by the Series.
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 pertaining to
the Assets of the 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 December 31, 2008, 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 notify
for such purpose to the other by notice in writing and shall be deemed
to have been given at the time of delivery.
12
If to the Advisor: PHOENIX VARIABLE ADVISORS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
and Chief Compliance Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If to the Subadvisor: ABERDEEN ASSET MANAGEMENT INC.
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇
25. Termination. This Agreement may be terminated by any 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, upon sixty (60) days' written notice to the other party but
any such termination shall not affect the status, obligations or
liabilities of any party hereto to the other party.
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 during the term of this
Agreement.
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. Certifications. The Subadvisor hereby warrants and represents that it
will provide the requisite certifications requested by the Chief
Executive Officer and the Chief Financial Officer of the Fund necessary
for those named officers to fulfill their reporting and certification
obligations on Form N-SAR as required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002.
13
30. 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.
31. 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.
THE PHOENIX EDGE SERIES FUND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
PHOENIX VARIABLE ADVISORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
ACCEPTED:
ABERDEEN ASSET MANAGEMENT INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SCHEDULES: A. Operational Procedures
B. Records to be Maintained by the Subadvisor
C. Subadvisory Fee
D. Subadvisor Functions
E. Form of Sub-Certification
14
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 (the "Custodian") and PFPC, Inc. (the "Sub-Accounting Agent") for the
Fund.
The Subadvisor must furnish the Custodian 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) on the day of the trade
(confirmation received from broker). The necessary information can be sent
electronically or via facsimile machine to the Custodian and the Sub-Accounting
Agent. Information provided to the Custodian and the Sub-Accounting Agent shall
include the following:
1. Purchase or sale; 2. Security name;
3. Security identifier (e.g., CUSIP), if applicable;
4. Number of shares and sales price per share;
5. Executing broker;
6. Settlement instructions for foreign trades; clearing and
executing broker for domestic trades;
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 Series, the
account must be a cash account. No margin accounts are to be maintained in the
name of the Series. Delivery instructions are as specified by the Custodian. The
Custodian and Sub-Accounting Agent will supply the Subadvisor daily with a cash
availability report via access to the Custodian website, or by email or by
facsimile and the Sub-Accounting Agent will provide a five day cash projection
report, which shall include cash detail and pending trades. This will normally
be done by electronically or via facsimile machine by confirmed facsimile or
confirmed electronic transmission so that the Subadvisor will know the amount
available for investment purposes.
15
SCHEDULE B
RECORDS TO BE MAINTAINED BY THE SUBADVISOR
1. (Rule 31a-1(b)(5)) A record of each brokerage order, and all other series
purchases and sales, given by the Subadvisor on behalf of the 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
cancellations 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
Series securities placed by the Subadvisor 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. The name of the person responsible for making the determination of
such allocation and such division of brokerage commissions or
other compensation.
16
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 series 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 series 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 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.
17
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 Series shall be valued as
set forth in the then current registration statement of the Fund.
Phoenix-Aberdeen International Series: 0.375% first $250 million
0.350% next $250 million
0.325% over $500 million
18
SCHEDULE D
SUBADVISOR FUNCTIONS
With respect to managing the investment and reinvestment of the Series'
assets, the Subadvisor shall provide, at its own expense:
(a) An investment program for the 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 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 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
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 Series' investment program, including, without
limitation, analysis of 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.
19
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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 Subadvisor 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:
20
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 Board of Trustees.
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 officer.
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 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
21