Exhibit 23(d)2(6)
Limited Services Subadvisory Agreement between Phoenix Variable Advisors, Inc.
and Ibbotson Associates, Inc.
covering Phoenix Dynamic Asset Allocation Series: Aggressive Growth,
Phoenix Dynamic Asset Allocation Series: Growth,
Phoenix Dynamic Asset Allocation Series: Moderate
and Phoenix Dynamic Asset Allocation Series: Moderate Growth
LIMITED SERVICES SUBADVISORY AGREEMENT
AGREEMENT dated as of March 3, 2008 (the "Effective Date") by and
between Phoenix Variable Advisors, Inc. (the "Advisor"), a corporation organized
under the laws of the State of Delaware, and Ibbotson Associates, Inc. (the
"Limited Services Subadvisor"), a company organized under the laws of the State
of Illinois.
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 Dynamic Asset Allocation Series: Moderate, Phoenix
Dynamic Asset Allocation Series: Moderate Growth, Phoenix Dynamic Asset
Allocation Series: Growth and Phoenix Dynamic Asset Allocation Series:
Aggressive Growth (collectively, the "Designated Series"); and
WHEREAS, the Advisor has entered into an Investment Advisory Agreement
("Advisory Agreement") with the Fund pursuant to which the Advisor acts as
investment advisor to the Fund on behalf of one or more separate series of the
Fund, including the Designated Series; and
WHEREAS, pursuant to the Advisory Agreement, the Advisor renders
certain investment advisory services to the Fund on behalf of the Designated
Series, including providing general oversight of the Designated Series, and
evaluating, recommending and monitoring one or more registered investment
advisors to serve as Limited Services Subadvisor to the Designated Series; and
WHEREAS, the Advisor desires, with the approval of the Board of
Trustees of the Fund (the "Trustees"), to retain the Limited Services Subadvisor
to furnish risk-based asset class models, specific to exchange-traded funds the
shares of which are traded on one or more U.S. securities exchanges ("ETFs") to
the Advisor for the Designated Series ("Model Portfolios"); and
WHEREAS, the Advisor has agreed to perform the services of investment
advisor to the Fund, the assets of which will be principally invested in ETFs;
WHEREAS, pursuant to its agreements with the Fund, the Advisor has, or
will have, full discretion, subject to the Fund's stated fundamental investment
policies and objectives, with respect to the investment of the assets of the
Fund and with respect to certain related matters;
WHEREAS, the Limited Services Subadvisor is willing to furnish Model
Portfolios on the terms and conditions hereinafter set forth;
NOW THEREFORE, the Advisor and the Limited Services Subadvisor agree as
follows:
1. Employment as a Limited Services Subadvisor. The Advisor, being duly
authorized, hereby appoints the Limited Services Subadvisor to serve in
a limited, non-discretionary capacity assisting the Adviser with regard
to the assets of the Designated Series (the "Assets"), subject to the
terms and conditions set forth in this Agreement.
2. Acceptance of Employment; Standard of Performance. The Limited Services
Subadvisor accepts its engagement to serve in a limited,
non-discretionary capacity and agrees to use its best professional
judgment in developing Model Portfolios for the Adviser in accordance
with the terms and conditions set forth in this Agreement and as set
forth in Schedule B attached hereto and made a part hereof.
(a) It will be the responsibility of the Advisor to accept,
reject, or modify the Limited Services Subadvisor's Model
Portfolios and, if applicable, each subsequent recommended
change to them, to calculate, arrange and execute purchases
and redemptions of the appropriate number of underlying fund
shares to effect the recommendations it accepts from the
Limited Services Subadvisor, execute and reconcile all
portfolio transactions for the Designated Series, direct all
incoming cash, and provide all required financial reporting;
and
(b) The Limited Services Subadvisor will report regularly to the
Advisor and Board of Trustees and will review with
representatives of the Advisor and the Board of Trustees at
reasonable times the investment philosophy, assumptions,
strategies, and any other relevant information used in the
connection with the Model Portfolios (collectively, "Model
Methodology"), review of the general investment strategies of
the Designated Series, the performance of the Designated
Series in relation to standard industry indices, interest rate
considerations and general conditions affecting the
marketplace and will provide various other reports from time
to time as reasonably requested by the Advisor.
3. Management. Subject always to the oversight of the Fund's Board of
Trustees and the supervision of the Advisor, the Limited Services
Subadvisor will make Model Portfolio recommendations to the Advisor.
In the performance of its duties, the Limited Services Subadvisor will
satisfy its fiduciary duties (as set forth below), will monitor the
Model Portfolios and will construct the Model Portfolios in compliance
with the stated investment objectives, policies and restrictions of
the Designated Series, the Fund's Agreement and Declaration of Trust,
dated February 18, 1986, establishing the Fund, as may be amended from
time to time, and where applicable, the 1940 Act, the Investment
Advisers Act of 1940, the Securities Act of 1933, and the Securities
Exchange Act of 1934, and any resolutions as may be duly adopted by
the Trustees from time to time and any instructions and procedures of
the Advisor, and furnished to the Limited Services Subadvisor in
writing. The Limited Services Subadvisor and the Advisor agree that
the Limited Services Subadvisor will not have investment discretion
and the Advisor will have the investment discretion for the Designated
Series. The Limited Services Subadvisor and the Advisor each will make
its officers and employees available to the other from time to time at
reasonable times to review investment policies of the Designated
Series and to consult with each other regarding the investment affairs
of the Designated Series. The Limited Services Subadvisor will provide
all relevant information, including its Model Methodology, to the
Board of Trustees and to the Advisor that supports their rationale for
their Model Portfolio recommendations. The Limited Services Subadvisor
shall construct the Model Portfolios to comply with the
diversification provisions of Section 817(h) of the Internal Revenue
Code of 1986 as amended, applicable to the Designated Series. Limited
Services Subadvisor shall not be responsible for monitoring the actual
compliance with Section 817(h) nor shall the Limited Services
Subadvisor be responsible where the non-compliance of the Designated
Series with Section 817(h) of the Internal Revenue Code of 1986, as
amended, is directly caused by the failure of a registered investment
company in which the Designated Series invests to comply with such
Section.
4. Exclusivity. The parties acknowledge and agree that the services of the
Limited Services Subadvisor hereunder are not deemed exclusive and
that, accordingly, the Limited Services Subadvisor may render services
to others so long as those services do not in any material manner
impair the ability of the Limited Services Subadvisor to perform its
duties and obligations pursuant to this Agreement.
5. Activities of the Limited Services Subadvisor. The Advisor and the Fund
recognize that the Limited Services Subadvisor and its affiliates,
officers, directors and employees may have investments of their own,
may be acting as investment advisor, manager or consultant for others
and may be providing research and analytical support for others, all in
the normal course of their business. The Advisor also recognizes that
the Limited Services Subadvisor and its affiliates, officers, directors
and employees may be or become associated with other investment
entities and engage in investment management and research and
analytical services for others in the future. Except to the extent
necessary to perform its obligations hereunder, nothing herein shall be
deemed to limit or restrict the right of the Limited Services
Subadvisor and its affiliates, officers, directors and employees to
engage in, or to devote time and attention to the management of or the
provision of research and other services to any other business, whether
of a similar or dissimilar nature, or to render services of any kind to
any other corporation, firm, individual or association. The Advisor and
the Fund acknowledge that the Limited Services Subadvisor and its
affiliates, officers, directors and employees and other clients may
hold substantial positions in the ETFs that are owned by the Designated
Series and that the Limited Services Subadvisor may on occasion give
advice or take action with respect to those positions or clients that
differs from the advice and information given to the Advisor.
6. Expenses. During the term of this Agreement, the Limited Services
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 Limited Services 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 Limited Services 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 fulfill the duties and obligations of the Limited
Services Subadvisor hereunder.
7. Fees for Services. The compensation of the Limited Services Subadvisor
for its services under this Agreement shall be calculated and paid by
the Advisor in accordance with the attached Schedule A. Pursuant to the
Advisory Agreement between the Fund and the Advisor, the Advisor shall
be solely responsible for the payment of fees to the Limited Services
Subadvisor.
8. Limitation of Liability. The Limited Services 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 its rights or powers conferred upon it by this
Agreement, or in accordance with specific directions or instructions
from the Fund, so long as such acts or omissions shall not have
constituted a breach of the investment objectives, policies and
restrictions applicable to the Designated Series and such acts or
omissions shall not have resulted from the Limited Services
Subadvisor's willful misfeasance, bad faith, reckless disregard or
gross negligence, a violation of the standard of care established by
and applicable to the Limited Services 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 Limited Services Subadvisor from liability under the
1940 Act, other federal or state securities laws or common law).
9. Indemnification.
(a) The Advisor agrees to indemnify and hold harmless the Limited
Services Subadvisor, its officers and directors, and any
person who "controls" the Limited Services 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 Limited Services
Subadvisor resulting from (i) the Advisor's breach of any
provision of this Agreement, (ii) modifications made by the
Adviser to the Limited Services Subadvisor's Model Portfolio
recommendations, (iii) investment decisions made by the
Advisor upon rejecting the Limited Services Subadvisor's Model
Portfolio recommendations, (iv) willful misfeasance, bad
faith, reckless disregard or gross negligence on the part of
the Advisor or any of its officers, directors or employees in
or relating to the performance of the Advisor's duties and
obligations under this Agreement or (v) any untrue statement
or alleged untrue statement of a material fact contained in
the Prospectus relating to the Designated Series or any
amendment thereof or any supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement therein
not misleading, if such a statement or omission was made by
the Fund other than in reliance upon written information
furnished by the Limited Services Subadvisor or any affiliated
person of the Limited Services Subadvisor, expressly for use
therein or other than upon verbal information confirmed by the
Limited Services Subadvisor in writing expressly for use
therein.
In no case shall the Advisor's indemnity in favor of the
Limited Services Subadvisor or any affiliated person or
controlling person of the Limited Services 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 Limited Services 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 Limited Services Subadvisor's breach of its duties
under this Agreement, (ii) willful misfeasance, bad faith,
reckless disregard or gross negligence on the part of the
Limited Services Subadvisor or any of its officers, directors
or employees in the performance of the Limited Services
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 relating to the
Designated Series or any amendment thereof or any supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statement therein not misleading, if such a statement
or omission was made in reliance upon written information
furnished by the Limited Services 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 Limited Services
Subadvisor in writing expressly for use in the Fund's
registration statement.
In no case shall the Limited Services 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.
(c) No party shall be obligated under this Section 9 to make any
payment in respect of a settlement, compromise of claim, entry
of judgment of any pending or threatened claim to which such
party has not consented, such consent not to be unreasonably
withheld or delayed.
(d) Promptly after receipt of notice of any claim or complaint or
the commencement of any action or proceeding with respect to
which the Advisor or the Limited Services Subadvisor is
entitled to seek indemnification hereunder, the indemnified
party will notify the indemnifying party in writing of such
claim or complaint or of the commencement of such action or
proceeding. If the indemnifying party so elects, the
indemnifying party will assume the defense of such action or
proceeding, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of fees
and disbursements of such counsel, and the indemnifying party
will not thereafter be liable to the indemnified party for any
additional expenses. In the event, however, such counsel has a
conflict of interest or if the indemnifying party fails to
employ counsel reasonably satisfactory to the indemnified
party in either case in a timely manner, then the indemnified
party may employ separate counsel to represent or defend it in
any such action or proceeding and the indemnifying party will
pay the reasonable fees and disbursements of such counsel. In
any action or proceeding the defense of which the indemnifying
party assumes, the indemnified party will have the right to
participate in such litigation and retain counsel at its own
expense.
10. Insurance. The Limited Services Subadvisor shall, during the term of
this Agreement, at its own expense, maintain liability and errors and
omissions insurance coverage.
11. 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 amended, 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 Limited Services 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
other than by reason of such person's own willful misfeasance, bad
faith or gross negligence in the performance of his or its duties or by
reason of his or its reckless disregard of its obligations and duties
to the Fund and the Designated Series.
12. Confidentiality. Subject to the duty of the Advisor or the Limited
Services Subadvisor to comply with applicable law, including any demand
of any regulatory or taxing authority having jurisdiction, the parties
hereto shall treat as confidential all information pertaining to the
Designated Series and the actions of the Limited Services Subadvisor
and the Fund in respect thereof. It is understood that any information
or recommendation supplied by the Limited Services Subadvisor in
connection with the performance of its obligations hereunder is to be
regarded as confidential and for use only by the Advisor, the Fund or
such persons as the Advisor may designate in connection with the
Designated Series who have agreed to maintain the confidentiality of
all such information. It is also understood that any information
supplied to the Limited Services Subadvisor in connection with the
performance of its obligations hereunder, particularly, but not limited
to, any list of investments which, on a temporary basis, may not be
bought or sold for the Designated Series, is to be regarded as
confidential and for use only by the Limited Services Subadvisor in
connection with its obligation to provide investment advice to the
Designated Series. The parties acknowledge and agree that all nonpublic
personal information with regard to shareholders in the Designated
Series shall be deemed proprietary information of the Advisor, and that
the Limited Services 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 Advisor and the Limited Services Subadvisor
shall maintain and enforce adequate security procedures with respect to
all materials, records, documents and data relating to any of their
responsibilities pursuant to this Agreement. The term "proprietary
information" does not include information which (i) is or becomes
generally available to the public other than as a result of a
disclosure directly or indirectly by the recipient; (ii) was within the
recipient's possession before it was furnished to the recipient by or
on behalf of the disclosing party pursuant hereto, provided that the
source of such information was not bound by a confidentiality agreement
with, or other contractual, legal or fiduciary obligation of
confidentiality to, the disclosing party or any other party with
respect to such information.
13. 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 and Rule 2a-6 thereunder. The Limited Services 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.
14. Representations, Warranties and Agreements of the Limited Services
Subadvisor. The Limited Services Subadvisor represents, warrants and
agrees that:
(a) It is registered as an "investment adviser" under the
Investment Advisers Act of 1940 ("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
possess 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 providing the services
described within this Agreement.
(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 Limited Services 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 40 days of the end of each
calendar quarter while this Agreement is in effect, a duly authorized
compliance officer of the Limited Services Subadvisor shall certify to
the Fund and to the Advisor that, to the best of such compliance
officer's knowledge, the Limited Services 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 Limited Services Subadvisor shall
permit the Fund and the Advisor to examine the above mentioned
certification made by the Limited Services Subadvisor.
(h) It will use all necessary efforts to make investment
recommendations to the Advisor that are consistent with the
diversification and minimum "good income" requirements of Subchapter M
and the diversification requirements of Section 817(h) of the Internal
Revenue Code of 1986, as amended.
(i) It has furnished a true and complete copy of its
registration statement as filed with the Securities and Exchange
Commission (the "Commission") on Form ADV to the Advisor and will
furnish promptly such updated copies of its registration statement or
amendments thereto as are filed with the Commission from time to time.
(j) It will furnish to the Advisor true and complete copies of
reports or other documents as may be reasonably requested by the
Advisor in connection with the performance of the Limited Services
Subadvisor's duties and obligations under this Agreement.
(k) It will furnish or otherwise make available to the Advisor
such other information relating to the business affairs of the Limited
Services Subadvisor, the Model Methodology, or the Model Portfolios as
the Advisor at any time reasonably requests in connection with the
Advisor's or Limited Services Subadvisor's performance of its
respective obligations hereunder; subject, however, to the Limited
Services Subadvisor's right to retain all such records as the Limited
Services 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 Limited Services Subadvisor.
(l) The Limited Services 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 the form presented in Schedule B attached
hereto and made a part hereof.
(m) 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 Limited Services Subadvisor and its supervised
persons, and, to the extent the activities of the Limited Services
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 Limited Services 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 Limited
Services Subadvisor agrees to cooperate with periodic reviews by the
Fund's compliance personnel of the Limited Services 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 with respect to the Limited
Services Subadvisor's policies and procedures, compliance with federal
securities laws, and related matters. The Limited Services Subadvisor
agrees to promptly notify the Advisor of any material compliance
violations that affect the Designated Series.
(n) It will provide the requisite certifications required
under the Designated Series procedures related to their Order for
Exemption from Section 17(a) and 12(d) of the 1940 Act, as set forth in
Schedule C.
15. Representations, Warranties and Agreements of the Advisor. The Advisor
represents, warrants and agrees that:
(a) It is registered as an "investment adviser" 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
possess 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 Limited Services Subadvisor true and
complete copies of (i) the Prospectus, (ii) the Declaration of Trust,
as amended, and (iii) any other documents or instruments governing the
investments and investment policies and practices of the Designated
Series applicable to the Limited Services Subadvisor's duties and
obligations hereunder, and during the term of this Agreement will
promptly deliver to the Limited Services 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 Limited
Services Subadvisor such other information relating to the business
affairs of the Fund as the Limited Services Subadvisor at any time, or
from time to time, reasonably requests in order to discharge its
obligations hereunder.
(h) It retains sole responsibility for the investment
recommendations it makes on behalf of the Designated Series and for
ensuring such recommendations are in compliance with the Designated
Series then current prospectus and Statement of Additional Information.
(i) It retains sole responsibility in ensuring the Designated
Series remains in compliance with the requirements of Subchapter M and
the diversification requirements of Section 817(h) of the Internal
Revenue Code of 1986, as amended.
(j) It retains sole responsibility for voting proxies of those
ETFs in which the Designated Series invests in.
(k) It retains sole responsibility for compiling, preparing
and filing all applicable regulatory filings of the Designated Series
and when applicable, for compiling, preparing and filing FINCEN
reports.
16. 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 its obligations under
this Agreement.
(b) The Fund is duly organized and validly existing under the
laws of the State in which it was organized with the power to own and
possess its assets and carry on its business as it is now being
conducted.
(c) The Fund has taken all necessary action, and has 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.
17. Reports. The Limited Services Subadvisor shall provide the Advisor and
the Trustees such periodic and special reports that pertain to the
Limited Services Subadvisor, its Model Methodology and Model Portfolios
as the Advisor may reasonably request. The Limited Services 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 Limited Services 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 Limited Services Subadvisor's code of ethics; and
(iii) any and all other reports pertaining to the Limited Services
Subadviser, its Model Methodology and Model Portfolios as reasonably
requested in accordance with or described in this Agreement.
(b) Annual or other periodic reports, in form and substance
acceptable to the Advisor, including but not limited reports with
respect to: (i) analyses of Designated Series performance; (ii)
disclosure related to the Model Methodology provided by the Limited
Services Subadvisor to the Advisor with respect to the Designated
Series as may be contained in the Prospectus or marketing materials as
amended, supplemented or otherwise updated from time to time; (iii)
compliance with the Limited Services Subadvisor's code of ethics
pursuant to Rule 206(4)-7 and Rule 17j-1; and (iv) such compliance
certifications as may be reasonably requested that are applicable and
relate to the services provided by the Limited Services Subadvisor.
(c) The parties acknowledge and agree that the Limited
Services Subadvisor is authorized to supply the Fund's independent
registered public accounting firm, or any successor accountant for the
Fund, any information that they may request in connection with the
Fund.
(d) In addition, the Limited Services Subadvisor shall
immediately notify and forward to both the Advisor and any legal
counsel for the Designated Series whose identity has been provided to
the Limited Services Subadvisor any legal process served upon it on
behalf of the Advisor or the Fund. The Limited Services Subadvisor
shall promptly notify the Advisor of any changes in any information
concerning the Limited Services Subadvisor of which the Limited
Services Subadvisor becomes aware that is or would be required to be
disclosed in the Fund's registration statement.
18. Use of Name of Limited Services Subadvisor. The Advisor and the Fund
may make reference to Ibbotson Associates' name in connection with
marketing and promotional materials related to the Model Portfolios and
in any description of the Model Portfolios contained in any prospectus
or other regulatory filing provided that the content and information
provided by the Limited Services Subadvisor is described in all
material respects in conformity with this Agreement, as then in effect.
The Limited Services Subadvisor must review and approve in writing each
use and reference of the Ibbotson Associates name. The Limited Services
Subadvisor agrees that such approval will not be unduly delayed and
agrees to approve all references to its name within 10 business days of
receiving a copy of such materials and a written request for their
approval.
19. Amendment. This Agreement may be amended at any time, but only by
written agreement between the Limited Services Subadvisor and the
Advisor, which amendment, other than amendments to Schedule A, B, or C
is subject to the approval of the Trustees and the Shareholders of the
Designated Series as and to the extent required by the 1940 Act.
20. 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 February 28, 2010, 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.
21. Notices. Except as otherwise provided in this Agreement, all notices or
other communications required of or permitted to be given hereunder
shall be in writing and shall be delivered or sent by (i) confirmed
facsimile, (ii) registered, certified or overnight mail, or (iii) a
nationally recognized overnight courier, to the following addresses or
to such other address as the relevant addressee shall hereafter provide
for such purpose to the other by notice in writing and shall be deemed
to have been given at the time of delivery.
If to the Advisor: PHOENIX VARIABLE ADVISORS, INC.
One American Row
Hartford, Connecticut
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If to the Limited Services
Subadvisor: IBBOTSON ASSOCIATES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
22. Termination This Agreement shall terminate immediately in the event of
its assignment, as specified above in Section 13 of this Agreement.
This Agreement may be terminated by either party, without penalty,
immediately upon written notice to the other party in the event of a
breach of any provision thereof by the party so notified, or otherwise,
by the Advisor, Limited Services Subadvisor, Board of Trustees of the
Fund or vote of a majority of the outstanding voting securities of the
Designated Series upon sixty (60) days' written notice to the other
party. Notwithstanding such termination, any liability of a party to
any other party under this Agreement shall survive and remain in full
force and effect with respect to any claim or matter on which any party
has given written notice to any other party prior to termination and
until such liability has been finally settled.
23. 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 Illinois, without giving effect to the conflicts of laws
principles thereof.
24. 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.
25. 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.
26. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute a single instrument.
(Signature page to follow)
IBBOTSON ASSOCIATES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: President
PHOENIX VARIABLE ADVISORS, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
ACCEPTED:
THE PHOENIX EDGE SERIES FUND
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
SCHEDULES: A. Fee Schedule
B. Form of Sub-Certification
C. Form of Fund of Funds Compliance Procedure
SCHEDULE A
LIMITED SERVICES SUBADVISORY FEE
For services provided to the Fund, the Advisor will pay to the Limited Services
Subadvisor, on an annual basis, the annual rate stated below applied against the
net assets of each Designated Series (the "Annual Fee"), less any amounts
received by the Limited Services Subadvisor or any affiliated person of the
Limited Services Subadvisor with respect to licensing fees received from any ETF
or ETF sponsor attributable to investments of the Designated Series in an ETF.
The fees shall be prorated for any month during which this Agreement is in
effect for only a portion of the month during which the Limited Services
Subadvisory Agreement is in effect. In computing the Annual Fee to be paid to
the Limited Services Subadvisor, the net asset value of the Fund of each
Designated Series shall be valued as set forth in the then current registration
statement of the Fund, payable on or before the 10th day of each month, payable
in arrears. The Annual Fee that has been paid on a monthly basis will be
adjusted to the actual Annual Fee, once annually within 15 business days of the
close of the fiscal year.
---------------------------------------- -------------------------------------
AGGREGATE ASSETS UNDER MANAGEMENT
ANNUAL FEE
---------------------------------------- -------------------------------------
---------------------------------------- -------------------------------------
$0 - $1 billion 0.06%
---------------------------------------- -------------------------------------
Greater than $1 billion 0.05%
---------------------------------------- -------------------------------------
Minimum Annual Fee $125,000
---------------------------------------- -------------------------------------
The fee to be paid to the Limited Services Subadvisor will be calculated based
on the average daily net assets of the: Phoenix Dynamic Asset Allocation Series:
Moderate, Phoenix Dynamic Asset Allocation Series: Moderate Growth, Phoenix
Dynamic Asset Allocation Series: Growth, and the Phoenix Dynamic Asset
Allocation Series: Aggressive Growth, and individually, for the respective
month, or shorter period during which the Limited Services Subadvisory Agreement
is in effect.
SCHEDULE B
FORM OF SUB-CERTIFICATION
To:
Re: Sub-Advisor's Form N-CSR Certification for The Phoenix Edge Series Fund
(the "Fund").
From: Ibbotson Associates, Inc. ("Ibbotson")
Representations in support of Investment Company Act Rule 30b2-1 certifications
of Form N-CSR (collectively, the "Series).
Phoenix Dynamic Asset Allocation Series: Moderate
Phoenix Dynamic Asset Allocation Series: Moderate Growth
Phoenix Dynamic Asset Allocation Series: Growth
Phoenix Dynamic Asset Allocation Series: Aggressive Growth
I certify that to the best of my knowledge:
a. The persons directly responsible for the construction and
on-going monitoring of the investment-specific, risk-based
asset class models provided to Phoenix Variable Advisors, Inc.
for use by the Series ("Model Portfolios"), have complied with
the restrictions and reporting requirements of Ibbotson's Code
of Ethics.
▇. ▇▇▇▇▇▇▇▇ has constructed the Model Portfolios in compliance
with the prospectus and SAI of the Fund and the Policies and
Procedures of the Fund as adopted by the Board of Trustees,
that have been disclosed to Ibbotson.
c. I have no knowledge of any compliance violations relating to
the Fund except as disclosed in writing to the Phoenix
Compliance Department by me.
▇. ▇▇▇▇▇▇▇▇ has complied with the applicable rules and
regulations of the 1933 Act and 1940 Act, and such other
regulations as may apply to the extent those rules and
regulations pertain to the responsibilities of Ibbotson with
respect to the Fund as outlined above.
e. 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 Limited Services
Subadvisor to the Series.
This certification relates solely to the Fund named above and may not be relied
upon by any other Fund or entity.
Ibbotson does not maintain the official books and records of the Fund.
Ibbotson's a record-keeping system is not intended to serve as the Fund's
official accounting system. Ibbotson is not responsible for the preparation or
submission of the Form N-CSR.
Ibbotson makes Model Portfolios available to the Advisor, which has full and
final investment decision making authority including accepting, rejecting, or
modifying Ibbotson's Model Portfolio recommendations.
BY:
---------------------------------------------------------
NAME: [Name of Authorized Signer]
TITLE:
------------------------------------------------------
DATE:
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SCHEDULE C
THE PHOENIX EDGE SERIES FUND (THE "TRUST")
FORM OF FUND OF FUNDS COMPLIANCE PROCEDURES
1. Phoenix Variable Advisors, Inc. (the "Manager"), the Manager's
affiliates, the funds of funds (the "Funds"), and any other funds or separate
accounts advised or sponsored by the Manager or its affiliates (the "Group") may
not purchase shares of an unaffiliated underlying fund ("Unaffiliated Fund") if
as a result of such purchase the members of the Group (either individually or in
the aggregate) would own 25% or more of such fund's shares. Similarly, Ibbotson
Associates, Inc.("Ibbotson"), Ibbotson's affiliates, and any funds or other
investment companies advised by the Ibbotson or its affiliates (the "Ibbotson
Group") may not purchase shares of an Unaffiliated Fund if as a result of such
purchase the members of the Sub-Adviser Group (either individually or in the
aggregate) would own 25% or more of such fund's shares. The Manager shall
monitor the Funds' purchases to ensure no such purchases are made. In addition,
the Manager shall periodically monitor the Funds' investments in Unaffiliated
Funds to ensure that if as a result of a decrease in the outstanding voting
securities of an Unaffiliated Fund, the Group or the Sub-Adviser Group, each in
the aggregate, becomes a holder of more than 25% of the outstanding voting
securities of the Unaffiliated Fund, the voting requirements imposed by the
conditions set forth at Exhibit B are followed.
2. The Manager and Ibbotson may not cause any existing or potential
investment by a Fund in an Unaffiliated Fund to influence the terms of any
services or transactions between the Fund or a Fund affiliate ("Fund Affiliate")
and the Unaffiliated Fund or an Unaffiliated Fund affiliate ("Unaffiliated Fund
Affiliate"). The Manager shall monitor to ensure and certify quarterly to the
Board that the Manager has not caused any existing or potential investment by a
Fund in an Unaffiliated Fund to influence the terms of any services or
transactions between the Fund or a Fund Affiliate and the Unaffiliated Fund or
an Unaffiliated Fund Affiliate. Ibbotson shall monitor to ensure and certify
quarterly to the Manager that Ibbotson has not caused any existing or potential
investment by a Fund in an Unaffiliated Fund to influence the terms of any
services or transactions between the Fund or a Fund Affiliate and the
Unaffiliated Fund or an Unaffiliated Fund Affiliate.
3. The Manager and Ibbotson shall conduct the investment program of the
Funds without taking into account any consideration received by a Fund or a Fund
Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate in
connection with any services or transactions. Representatives of the Manager
shall monitor to ensure, and the Manager shall certify quarterly to the Board,
that the Manager has so conducted the investment program. Representatives of
Ibbotson shall monitor to insure and Ibbotson shall certify quarterly to the
Manager that Ibbotson has so conducted the investment program.
4. Certain conditions of the Funds' exemptive relief and the exemptive
relief of the Unaffiliated Funds are operative only if an Unaffiliated Fund
purchases securities in an "Affiliated Underwriting." As of the date of these
procedures, neither the Funds, nor the Manager, nor any affiliate of the Manager
act as principal underwriters in offerings of securities in which an
Unaffiliated Fund would purchase securities. Representatives of the Manager
shall also confirm that as of the date of these procedures neither Ibbotson nor
any affiliate of the Ibbotson acts as principal underwriter in offerings of
securities in which an Unaffiliated Fund would purchase securities.
Additionally, representatives of the Manager shall annually confirm and certify
to the Board that neither the Funds, the Manager, Ibbotson, nor any of their
affiliates act as principal underwriters in offerings of securities in which an
Unaffiliated Fund would purchase securities. Representatives of Ibbotson shall
annually confirm and certify to the Manager that neither Ibbotson nor any of its
affiliates acts as principal underwriters of securities in which an Unaffliated
Fund would purchase securities. If the Manager is unable at any time to so
confirm and certify to the Board, these compliance procedures shall be revised
to include additional procedures to ensure compliance with the Unaffiliated
Underwriting exemptive conditions.
5. A. Before the Funds rely on the exemptive order of any
Unaffiliated Fund, the Trust and the Unaffiliated Fund shall execute an
agreement stating, without limitation, that the Board, Manager and Ibbotson
understand the terms and conditions of the order and agree to fulfill their
responsibilities under the order. The Trust and the Unaffiliated Fund shall
maintain and preserve a copy of the order and the agreement for a period of not
less than six years from the end of the fiscal year in which any investment
occurred, the first two years in an easily accessible place.
B. When the Funds rely on their own exemptive order from the
SEC, prior to any Fund investing in shares of an Unaffiliated Fund in excess of
the limit set forth in Section 12(d)(1)(A)(i) of the Act (e.g., if the Fund owns
more than 3 percent of the shares of the Unaffiliated Fund), the Trust and the
Unaffiliated Fund shall execute an agreement stating, without limitation, that
their boards of directors or trustees and their investment advisers understand
the terms and conditions of the order and agree to fulfill their
responsibilities under the order. At the time of its investment in shares of an
Unaffiliated Fund in excess of the limit set forth in Section 12(d)(1)(A)(i), a
Fund shall notify the Unaffiliated Fund of the investment. The Manager shall
monitor each Fund's investments to determine if it is likely that a Fund will
invest in an Unaffiliated Fund in excess of the limits of Section
12(d)(1)(A)(i).
6. Before approving any advisory contract under Section 15 of
the Act, the Board, including a majority of the Disinterested Trustees, shall
find that the advisory fees charged under the advisory contract are based on
services provided that are in addition to, rather than duplicative of, services
provided under the advisory contract(s) of any Underlying Fund in which the Fund
may invest. Such finding, and the basis upon which the finding was made, shall
be recorded fully in the minute books of the Trust.
7. The Manager shall waive fees otherwise payable to it by a Fund
in an amount at least equal to any compensation (including fees received
pursuant to any plan adopted by an Unaffiliated Fund under Rule 12b-1 under the
Act) received from an Unaffiliated Fund by the Manager, or an affiliated person
of the Manager, other than any advisory fees paid to the Manager or its
affiliated person by the Unaffiliated Fund, in connection with the investment by
the Fund in the Unaffiliated Fund. Likewise, Ibbotson shall waive fees otherwise
payable to Ibbotson, directly or indirectly, by a Fund in an amount at least
equal to any compensation received from an Unaffiliated Fund by Ibbotson, or an
affiliated person of Ibbotson, other than any advisory fees paid to Ibbotson or
its affiliated person by the Unaffiliated Fund, in connection with the
investment by the Fund in the Unaffiliated Fund made at the direction of
Ibbotson. In the event that Ibbotson waives fees, the benefit of the waiver will
be passed through to the Fund. Ibbotson shall certify to the Manager annually
that the requirements of this Paragraph 7 have been met.
8. With respect to registered separate accounts that invest in a
Fund, no sales load may be charged at the Fund level or at the Unaffiliated Fund
level. Other sales charges and service fees, as defined in rule 2830 of the
Conduct Rules of the FINRA (generally, these fees refer to Rule 12b-1 fees and
shareholder services fees), if any, may only be charged at the Fund level or at
the Unaffiliated Fund level, not both. Because the Funds charge Rule 12b-1 fees,
this effectively prohibits a Fund from investing in an Underlying Fund that
charges Rule 12b-1 fees. With respect to other investments in a Fund (and at any
time while the Funds are relying on the exemptive order of any Unaffiliated
Fund, with respect to registered separate accounts that invest in the Fund), any
sales charges and/or service fees charged with respect to shares of a Fund may
not exceed the limits applicable to funds of funds set forth in rule 2830 of the
Conduct Rules of the FINRA. The Manager shall certify to the Board annually that
the requirements of this Paragraph 8 have been met.