EXHIBIT 4(h)
PHOENIX FOREIGN OPPORTUNITIES FUND
PHOENIX FOCUSED VALUE FUND
FORM OF SUBADVISORY AGREEMENT
, 2005
Vontobel Asset Management
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RE: SUBADVISORY AGREEMENT
Gentlemen:
Phoenix Adviser Trust (the "Fund") is a diversified open-end investment
company of the series type registered under the Investment Company Act of 1940
(the "Act"), and is subject to the rules and regulations promulgated thereunder.
The shares of the Fund are offered or may be offered in several series. Phoenix
Investment Counsel, Inc. (the "Adviser") serves as an adviser to a number of
series organized under the Trust. In this capacity, the Adviser evaluates and
recommends subadvisers to provide investment management services to the various
series of the Trust.. At this time the Adviser desires to engage the services of
Vontobel Asset Management, Inc. (("Vontobel" or the "Subadviser") to provide
investment management services to the Phoenix Foreign Opportunities Fund and the
Phoenix Focused Value Fund, both series of the Trust (collectively sometimes
hereafter referred to as the "Series"). The parties further contemplate the
possibility that, at some point in the future, the Adviser may request the
Subadviser to provide investment management services to other series of the
Trust, in which case the Subadviser's concurrence shall be manifested in
writing. It is further agreed that the provision of such investment management
services in the future by the Subadviser shall be governed by the terms and
provisions of this Agreement (as amended from time to time).
1. Employment as a Subadviser. The Adviser, being duly authorized, hereby
employs Vontobel as a discretionary Subadviser to invest and reinvest the assets
of the Series under the terms and conditions set forth herein. The services of
the Subadviser hereunder are not to be deemed exclusive; the Subadviser may
render services to others and engage in other activities that do not conflict in
any material manner in the Subadviser's performance hereunder; however, for as
long as the subadvisory agreement is in place, in no event shall the Subadviser
provide future advisory or subadvisory services to another retail open-ended
registered investment company managed in a like style to the Series and sold
only through financial intermediaries except as agreed upon in writing between
the Adviser and the Subadviser, which agreement will not be unreasonably
withheld by the Adviser.
2. Acceptance of Employment; Standard of Performance. The Subadviser
accepts its employment as a discretionary series Subadviser of the Series and
agrees to use due care in making investment decisions for the Series in
accordance with the provisions of this Agreement and as set forth in Schedule D
attached hereto and made a part hereof.
3. Services of Subadviser. In providing management services to the Series,
the Subadviser shall be subject to the investment objectives, policies and
restrictions of the Fund as they apply to the Series and as set forth in the
Fund's then current Prospectus and Statement of Additional Information (as the
same may be modified from time to time and provided to the Subadviser by
Adviser), and to the investment restrictions set forth in the Act and the Rules
thereunder, to the supervision and control of the Trustees of the Fund (the
"Trustees"), and to instructions from the Adviser. The Subadviser shall not,
without the Fund's prior approval, effect any transactions that would cause the
Series at the time of the transaction to be out of compliance with any of such
restrictions or policies.
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4. Transaction Procedures. All transactions for 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 in writing, of all cash and/or securities due to
or from the Series. The Subadviser shall not have possession or custody of such
cash and/or securities or any responsibility or liability with respect to such
custody. The Subadviser shall advise the Custodian and confirm in an acceptable
format to the Fund all investment orders for the Series placed by it 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 Subadviser.
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 Subadviser shall have no responsibility or liability with respect
to custodial arrangements or the act, omissions or other conduct of the
Custodian.
5. Allocation of Brokerage. The Subadviser shall have authority and
discretion to select brokers and dealers to execute Series transactions
initiated by the Subadviser, and to select the markets on or in which the
transactions will be executed.
A. In placing orders for the sale and purchase of Series securities
for the Fund, the Subadviser's primary responsibility shall be to seek the
best execution of orders at the most favorable prices. However, this
responsibility shall not obligate the Subadviser to solicit competitive
bids for each transaction or to seek the lowest available commission cost
to the Fund, so long as the Subadviser reasonably believes that the broker
or dealer selected by it can be expected to obtain a "best execution"
market price 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
Securities Exchange Act of 1934) provided by such broker or dealer to the
Subadviser, viewed in terms of either that particular transaction or of the
Subadviser's overall responsibilities with respect to its clients,
including the Fund, as to which the Subadviser 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.
B. The Subadviser shall not execute any Series transactions for the
Series with a broker or dealer that is an "affiliated person" (as defined
in the Act) of the Fund, the Subadviser or the Adviser without the prior
written approval of the Fund. The Fund will provide the Subadviser with a
list of brokers and dealers that are "affiliated persons" of the Fund or
Adviser.
6. Proxies. The Subadviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in relation to the
Assets. Unless the Adviser or the Fund gives the Subadviser written instructions
to the contrary, the Subadviser will, in compliance with the proxy voting
procedures of the Series then in effect, vote or abstain from voting, all
proxies solicited by or with respect to the issuers of securities in which
assets of the Series may be invested. The Adviser shall cause the Custodian to
forward promptly to the Subadviser all proxies upon receipt, so as to afford the
Subadviser a reasonable amount of time in which to determine how to vote such
proxies. The Subadviser agrees to provide the Adviser with quarterly proxy
voting reports in such form as the Adviser may request from time to time. The
Subadviser shall take such action as necessary to allow for the timely filing of
Form N-PX for the Fund.
7. Fees for Services. The compensation of the Subadviser for its services
under this Agreement shall be calculated and paid by the Adviser in accordance
with the attached Schedule C. Pursuant to the Investment Advisory Agreement
between the Fund and the Adviser, the Adviser is solely responsible for the
payment of fees to the Subadviser.
8. Limitation of Liability. The Subadviser shall not be liable for any
action taken, omitted or suffered to be taken by it while using due care, 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, provided, however, that such
acts or omissions shall not have constituted a breach of the investment
objectives, policies and restrictions applicable to the Series and that such
acts or omissions shall not have resulted from the Subadviser's willful
misfeasance, bad faith or gross negligence, a violation of
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the standard of care established by and applicable to the Subadviser in its
actions under this Agreement or a breach of its duty or of its obligations
hereunder (provided, however, that the foregoing shall not be construed to
protect the Subadviser from liability under the Act).
9. Confidentiality. Subject to the duty of the Subadviser and the Fund 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 Subadviser and
the Fund in respect thereof.
10. Assignment. This Agreement shall terminate automatically in the event
of its assignment, as that term is defined in Section 2(a)(4) of the Act. The
Subadviser shall notify the Fund in writing sufficiently in advance of any
proposed change of control, as defined in Section 2(a)(9) of the Act, as will
enable the Fund to consider whether an assignment as defined in Section 2(a)(4)
of the Act will occur, and to take the steps necessary to enter into a new
contract with the Subadviser.
11. Representations, Warranties and Agreements of the Subadviser. The
Subadviser represents, warrants and agrees that:
A. It is registered as an "Investment Adviser" under the Investment
Advisers Act of 1940 ("Advisers Act").
B. It will maintain, keep current and preserve on behalf of the Fund,
in the manner required or permitted by the Act and the Rules thereunder,
the records identified in Schedule B (as Schedule B may be amended from
time to time). The Subadviser agrees that such records are the property of
the Fund, and will be surrendered to the Fund or to Adviser as agent of the
Fund promptly upon request of either.
C. It has or shall adopt a written code of ethics complying with the
requirements of Rule 17j-l under the Act and will provide the Fund and
Adviser with a copy of the code of ethics and evidence of its adoption.
Subadviser acknowledges receipt of the written code of ethics adopted by
and on behalf of the Fund (the "Code of Ethics"). Within 10 days of the end
of each calendar quarter while this Agreement is in effect, a duly
authorized compliance officer of the Subadviser shall certify to the Fund
and to Adviser that the Subadviser has complied with the requirements of
Rule 17j-l during the previous calendar quarter and that there has been no
violation of its code of ethics, or the Code of Ethics, or if such a
violation has occurred, that appropriate action was taken in response to
such violation. The Subadviser shall permit the Fund and Adviser to examine
the reports required to be made by the Subadviser under Rule 17j-l(c)(1)
and this subparagraph.
D. Reference is hereby made to the Declaration of Trust dated [date]
establishing the Fund, a copy of which has been filed with the Secretary of
the State of Delaware and elsewhere as required by law, and to any and all
amendments thereto so filed with the Secretary of the State of Delaware and
elsewhere as required by law, and to any and all amendments thereto so
filed or hereafter filed. The name "[TBD]" 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
trust estate under said Declaration of Trust is liable. Without limiting
the generality of the foregoing, neither the Subadviser 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 trust estate.
12. Amendment. This Agreement may be amended at any time, but only by
written agreement among the Subadviser, the Adviser and the Fund, which
amendment, other than amendments to Schedules A, B, and D, is subject to the
approval of the Trustees and the Shareholders of the Fund as and to the extent
required by the Act.
13. Effective Date; Term. This Agreement shall become effective on the
date set forth on the first page of this Agreement, and shall continue in effect
until the first meeting of the shareholders of the Series, and, if
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its renewal is approved at that meeting in the manner required by the Act, shall
continue in effect thereafter only so long as its continuance has been
specifically approved at least annually by the Trustees in accordance with
Section 15(a) of the Investment Company Act, and by the majority vote of the
disinterested Trustees in accordance with the requirements of Section 15(c)
thereof.
14. 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 a party so notified, or otherwise upon thirty
(30) days' written notice to the other party, but any such termination shall not
affect the status, obligations or liabilities of any party hereto contained in
Paragraphs 7 ("Fees for Services"), 8 ("Limitation of Liability"), 9
("Confidentiality"), 17 ("Notices") or 19 ("Indemnification"). Because the
Subadviser will or may provide investment management services to more than one
series of the Trust, it shall be presumed that any notice of termination
provided under this Agreement by one party to the other shall apply to each and
every series of the Trust to which the Subadviser provides investment management
services under this Agreement at the time the notice is tendered, unless the
notice provides that the termination is limited to less than all series advised
by the Subadviser and those series that are the subject of the notice of
termination are specifically identified in that notice.
15. 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 Delaware.
16. 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.
17. Notices. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered personally or
by overnight delivery service or mailed by certified or registered mail, return
receipt requested and postage prepaid, or sent by facsimile addressed to the
parties at their respective addresses set forth below, or at such other address
as shall be designated by any party in a written notice to the other party.
(a) To Phoenix at:
Phoenix Investment Counsel, Inc.
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Attn: Chief Legal Officer
(b) To Vontobel at:
Vontobel Asset Management, Inc.
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Chief Compliance Officer
18. Certifications. The Subadviser 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 Forms N-CSR
and N-Q as required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
19. Indemnification. The Adviser agrees to indemnify and hold harmless the
Subadviser and the Subadviser's directors, officers, employees and agents from
and against any and all losses, liabilities, claims, damages, and expenses
whatsoever, including reasonable attorneys' fees (collectively, "Losses"),
arising out of or relating to (i) any breach by the Adviser of any provision of
this Agreement; (ii) the negligence, willful misconduct, bad faith, or breach of
fiduciary duty of the Adviser; (iii) any violation by the Adviser of any law or
regulation relating to its activities under this Agreement; and (iv) any dispute
between the Adviser and any Fund shareholder, except to the extent that such
Losses result from the gross negligence, willful misconduct, bad faith, or
breach of fiduciary duty of the Subadviser.
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PHOENIX ADVISER TRUST
By:
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[Name]
[Title]
PHOENIX INVESTMENT COUNSEL, INC.
By:
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[Name]
[Title]
ACCEPTED:
VONTOBEL ASSET MANAGEMENT
By:
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[Name]
[Title]
SCHEDULES: A. Operational Procedures
B. Record Keeping Requirements
C. Fee Schedule
D. Subadviser Functions
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SCHEDULE A
OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow
of information to be supplied to State Street Bank & Trust (the "Custodian"),
the custodian for the Fund and PFPC, Inc., the sub-financial agent for the Fund.
The Subadviser must furnish the Custodian and the sub-financial agent with
daily information as to executed trades, or, if no trades are executed, with a
report to that effect, no later than 5 p.m. (Eastern Standard time) on the day
of the trade (confirmation received from broker). The necessary information can
be sent via facsimile machine to the Custodian. Information provided to the
Custodian 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. Identified tax lot (if applicable);
15. Yield (if applicable);
16. Original face amount (if applicable);
17. Ratings (if applicable); and
18. Trade reason code.
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. Trades in initial public offerings must be communicated by 4
p.m. ET on trade date. Delivery instructions are as specified by the Custodian.
The Custodian will supply the Subadviser daily with a cash availability report.
This will normally be done by fax or electronic mail so that the Subadviser will
know the amount available for investment purposes.
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SCHEDULE B
RECORDS TO BE MAINTAINED BY THE SUBADVISER
1. (Rule 31a-1(b)(5)) A record of each brokerage order, and all other
series purchases and sales, given by the Subadviser on behalf of the Fund 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 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 Adviser (Phoenix Investment Counsel, Inc.)
(c) The Subadviser, 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.
3. (Rule 31a-(b)(10)) A record 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.*
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* 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 subadviser review.
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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 Subadviser's transactions for the Fund.
5. (NASD Rule 3110). Such books, accounts, records, memoranda, and
correspondence in conformity with all applicable laws, rules, regulations and
statements of policy promulgated thereunder and with the Rules of the
Association and as prescribed by SEC Rule 17a-3. The record keeping format,
medium, and retention period shall comply with Rule 17a-4 under the Securities
Exchange Act of 1934.
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SCHEDULE C
SUBADVISORY FEE
(a) For services provided to the Fund, the Adviser will pay to the
Subadviser, on or before the 10th day of each month, a fee, payable in arrears,
at the annual rate set forth below by Series of the gross management fee as
stipulated in the Fund's registration statement. 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 Subadviser, 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.
Focused Value Fund: Zero to $50 million 70 basis points
Above $50 million 37.5 basis points
International Equity Fund: Zero to $50 million 80 basis points
Above $50 million 42.5 basis points
The fee referred to above shall be wired to Vontobel's account set forth
below:
Bank: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
SWIFT: ▇▇▇▇▇▇▇▇
Beneficiary: Vontobel Asset Management, Inc.
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Account No. 904810445
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SCHEDULE D
SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of the Series'
assets, the Subadviser 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
Adviser and as disclosed in the Fund's registration statement;
(b) Implementation of the investment program for the Series based upon
the foregoing criteria;
(c) Quarterly reports, in form and substance acceptable to the
Adviser, with respect to: i) compliance with the Code of Ethics and the
Subadviser's code of ethics;; ii) diversification of Series assets in
accordance with the then prevailing prospectus and statement of additional
information pertaining to the Series and governing laws; iii) compliance
with governing restrictions including but not limited to the Valuation
Procedures adopted by the Board of Trustees to the Fund and other
procedures for the fair valuation of securities for which market quotations
and the liquidity determination are not readily available or considered
"illiquid" for the purposes of complying with the Series' limitation on
acquisition of illiquid securities; iiii) any and all other reports
reasonably requested in accordance with or described in this Agreement;
and, iv) 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 Adviser and
the Trustees;
(e) Attendance by appropriate representatives of the Subadviser at
meetings requested by the Adviser or Trustees at such time(s) and
location(s) as reasonably requested by the Adviser or Trustees;
(f) Notice to the Trustees and the Adviser of the occurrence of any
event which would disqualify the Subadviser from serving as an investment
adviser of an investment company pursuant to Section 9(a) of the Investment
Company Act of 1940 or otherwise; and
(g) A business continuity and disaster recovery program in accordance
with applicable industry best practices.
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