Exhibit d.2
PHOENIX DUFF & ▇▇▇▇▇▇ INSTITUTIONAL MUTUAL FUNDS
SUBADVISORY AGREEMENT
PHOENIX DUFF & ▇▇▇▇▇▇ INSTITUTIONAL MUTUAL FUNDS
SUBADVISORY AGREEMENT
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August 6, 1999
Seneca Capital Management LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: SUBADVISORY AGREEMENT
Gentlemen:
Phoenix Duff & ▇▇▇▇▇▇ Institutional Mutual Funds (the "Trust") 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 Trust are offered or may be offered in
several series, including the Phoenix Duff & ▇▇▇▇▇▇ Institutional Growth Stock
Portfolio (hereafter referred to as the "Portfolio").
Phoenix Investment Counsel, Inc. (the "Adviser") evaluates and recommends series
advisers for the Trust and is responsible for the day-to-day management of the
Portfolio.
1. Employment as a Subadviser. The Adviser, being duly authorized, hereby
employs Seneca Capital Management LLC (the "Subadviser") as a
subadviser to invest and reinvest the assets of the Portfolio on 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 which do not conflict
in any material manner in the Subadviser's performance hereunder.
2. Acceptance of Employment; Standard of Performance. The Subadviser
accepts its employment as a subadviser to the Adviser and agrees to use
its best professional judgment to make investment decisions for the
Portfolio in accordance with the provisions of this Agreement.
3. Services of Subadviser. The Subadviser shall provide the services set
forth herein and in Schedule A attached hereto and made a part hereof.
In providing management services to the Portfolio, the Subadviser shall
be subject to the investment objectives, policies and restrictions of
the Trust as they apply to the Portfolio and as set forth in the
Trust's then-current Prospectus and Statement of Additional Information
(as the same may be modified from time to time), and to the Trust's
Agreement and Declaration of Trust, to the investment and other
restrictions set forth in the Act, the Securities Act of 1933 and the
Internal Revenue Code and the rules and regulations thereunder, and to
the supervision and control of the Trustees of the Trust (the
"Trustees"). The Subadviser shall not, without the Adviser's prior
approval, effect any transactions which would cause the Trust at the
time of the transaction to be out of compliance with any of such
restrictions or policies.
4. Expenses. The Subadviser shall furnish at its own expense, or pay the
expenses of the Adviser, for the following:
(a) Office facilities, including office space, furniture and
equipment utilized by its employees, in the
fulfillment of Subadviser's responsibilities hereunder;
(b) Personnel necessary to perform the functions required to
manage the investment and reinvestment of the Trust's
assets (including those required for research,
statistical and investment work), and to fulfill the
other functions of the Subadviser hereunder;
(c) Personnel to serve without salaries for the Trust as
officers or agents of the Trust. The Subadviser need not
provide personnel to perform, or pay the expenses of the
Adviser for, services customarily performed for an
open-end management investment company by its national
distributor, custodian, financial agent, transfer agent,
auditors and legal counsel; and
(d) Compensation and expenses, if any, of the Trustees who
are also full-time employees of the Subadviser.
5. Transaction Procedures. All transactions for the Portfolio will be
consummated by payment to, or delivery by, the Custodian(s) from time
to time designated by the Trust (the "Custodian"), or such depositories
or agents as may be designated by the Custodian pursuant to its
agreement with the Trust (the "Custodian Agreement"), of all cash
and/or securities due to or from the Portfolio. 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 writing to the
Trust all investment orders for the Portfolio placed by it with brokers
and dealers at the time and in the manner set forth in the Custodian
Agreement and in Schedule B hereto (as amended from time to time). The
Trust shall issue to the Custodian such instructions as may be
appropriate in connection with the settlement of any transaction
initiated by the Subadviser. The Trust 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 acts, omissions or other conduct of the
Custodian.
6. Allocation of Brokerage. The Subadviser shall have authority and
discretion to select brokers and dealers to execute Portfolio
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 Portfolio
securities for the Trust, 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 Trust, so long as the Subadviser
reasonably believes that the broker or dealer selected by it can be
expected to obtain "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 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 Trust, as
to which the Subadviser exercises investment discretion,
notwithstanding that the Trust may not be
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the direct or exclusive beneficiary of any such services or that
another broker may be willing to charge the Trust a lower commission on
the particular transaction.
B. Subject to the requirements of paragraph A above, the Adviser
shall have the right to require that transactions giving rise to
brokerage commissions, in an amount to be agreed upon by the Adviser
and the Subadviser, shall be executed by brokers and dealers that
provide brokerage or research services to the Trust or that will be of
value to the Trust in the management of its assets, which services and
relationship may, but need not, be of direct or exclusive benefit to
the Portfolio. In addition, subject to paragraph A above, the
applicable Conduct Rules of the National Association of Securities
Dealers, Inc. and other applicable law, the Trust shall have the right
to request that transactions be executed by brokers and dealers by or
through whom sales of shares of the Trust are made.
C. The Subadviser shall not execute any transactions for the
Portfolio with a broker or dealer that is an "affiliated person" (as
defined in the Act) of the Trust, the Subadviser or the Adviser without
the prior written approval of the Trust.
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 Trust 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 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 Trust, provided, however, that such acts or
omissions shall not have constituted a breach of the investment
objectives, policies and restrictions applicable to the Portfolio and
that such acts or omissions shall not have resulted from the
Subadviser's willful misfeasance, bad faith or gross negligence, a
violation of 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, other federal or state securities laws or common law).
9. Confidentiality. Subject to the duty of the Subadviser 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 Portfolio and the
actions of the Subadviser and the Trust 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 Adviser 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 Adviser to consider whether an
assignment as defined in Section 2(a)(4) of the Act will occur and to
take the steps it deems necessary.
11. Representations, Warranties and Agreements of the Subadviser. The
Subadviser represents, warrants and agrees that:
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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 Trust, in the manner required or permitted by the Act and
the Rules thereunder, the records identified in Schedule D (as
amended from time to time). The Subadviser agrees that such
records are the property of the Trust, and will be surrendered
to the Trust or to the Adviser as agent of the Trust promptly
upon request of either.
C. It has a written code of ethics complying with the
requirements of Rule 17j-l under the Act and will provide the
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 Trust (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
Trust and to the 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 Trust 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 December 4, 1995, establishing the 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 Phoenix Duff & ▇▇▇▇▇▇
Institutional Mutual Funds refers to the Trustees under said
Declaration of Trust, as Trustees and not personally, and no
Trustee, shareholder, officer, agent or employee of the Trust
shall be held to any personal liability in connection with the
affairs of the Trust; 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 Trust
or of any successor of the Trust, 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 between the Subadviser and the Adviser, which
amendment, other than amendments to Schedules B and D, is subject to
the approval of the Trustees and the Shareholders of the Trust 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. Unless terminated as
hereinafter provided, this Agreement shall remain in full force and
effect until December 31, 1999, and 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 Act, and by the
majority vote of the disinterested Trustees in accordance with the
requirements of Section 15(c) thereof.
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14. Termination. 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, upon sixty (60) days' written notice to the other party, but
any such termination shall not affect the status, obligations or
liabilities of either party hereto to the other party.
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 Commonwealth of Massachusetts.
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.
PHOENIX INVESTMENT COUNSEL, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
ACCEPTED:
SENECA CAPITAL MANAGEMENT LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Operating Officer
SCHEDULES: A. Subadviser Functions
B. Operational Procedures
C. Fee Schedule
D. Record Keeping Requirements
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SCHEDULE A
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SUBADVISER FUNCTIONS
With respect to managing the investment and reinvestment of the
Portfolio assets, the Subadviser shall provide, at its own expense:
(a) An investment program for the Portfolio 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;
(b) Implementation of the investment program for the Portfolio
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) compliance
with procedures adopted from time to time by the Trustees of
the Trust relative to securities eligible for resale under
Rule 144A under the Securities Act of 1933, as amended; iii)
diversification of Portfolio assets in accordance with the
then-prevailing prospectus and statement of additional
information pertaining to the Portfolio 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 Portfolio limitation on
acquisition of illiquid securities; v) any and all other
reports reasonably requested in accordance with or described
in this Agreement; and, vi) the implementation of the
Portfolio investment program, including, without limitation,
analysis of Portfolio performance;
(d) 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; and
(e) Participation, overall assistance and support in marketing the
Portfolio, including, without limitation, meetings with
pension fund representatives, broker/dealers who have a sales
agreement with Phoenix Equity Planning Corporation, and other
parties requested by the Adviser.
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SCHEDULE B
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OPERATIONAL PROCEDURES
In order to minimize operational problems, it will be necessary for a flow of
information to be supplied to State Street Bank and Trust Company (the
"Custodian"), the custodian for the Trust.
The Subadviser must furnish the Custodian 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; and
14. Identified tax lot (if applicable).
When opening accounts with brokers for, and in the name of, the Trust, the
account must be a cash account. No margin accounts are to be maintained in the
name of the Trust. 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 telex so that the Subadviser will know the amount
available for investment purposes.
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SCHEDULE C
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SUBADVISORY FEE
For services provided to the Trust pursuant to paragraph 3 hereof, 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 of 0.10% of the average daily net
assets of the Phoenix Duff & ▇▇▇▇▇▇ Institutional Growth Stock Portfolio up to
$67.8 million, 0.30% of such value between $67.8 million and $1 billion and
0.275% of such value in excess of $1 billion. 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
Trust and each Portfolio shall be valued as set forth in the then-current
registration statement of the Trust.
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SCHEDULE D
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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
Trust 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
Trust.
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 broker 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 Trust by brokers or dealers.
(ii) The supplying of services or benefits by brokers or
dealers to:
(a) The Trust,
(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 3la-(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 an authorization is made
by a committee or group, 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 Trust.